Before us for automatic review^[1] is the decision^[2] of 30 April 1998 of the Regional Trial Court of Roxas City, Branch 14, in Criminal Cases Nos. C-4766, C-4767 and C-4768 finding accused-appellant Cesar Melendres y Bejo (hereafter CESAR) guilty beyond reasonable doubt of three (3) counts of rape committed against Helen Balinario (hereafter HELEN). The dispositive portion of the decision reads as follows:

IN VIEW OF THE FOREGOING ESTABLISHED FACTS, the Court finds the accused GUILTY beyond reasonable doubt of the three (3) counts of the crime of Rape committed on three different occasions in the months of November and December 1994 and January 1995, all in Brgy. Jamulawon, Panay, Capiz with the use of a gun and through the use of threats and intimidation against the daughter of his common-law wife, complainant Helen Balinario, who was then 11 years of age.

Accordingly, accused Cesar Melendres y Bejo is sentenced to suffer the extreme penalty of three (3) DEATHS in accordance with the doctrine of the Supreme Court enunciated in Pp. vs. Jose 37 SCRA 450; to recognize Rey Balinario, the offspring of his bestial acts, as his natural child entitled to his support; and to indemnify the complainant in the amount of One Hundred Fifty Thousand Pesos (P150,000.00) as damages and to pay the costs.

SO ORDERED.

These cases were originally commenced with the filing of a criminal complaint by HELEN, assisted by her mother Visitacion Balinario, on 24 April 1995 before the Municipal Circuit Trial Court of Pontevedra-Panay, Province of Capiz. After appropriate proceedings, with CESAR opting not to file his counter-affidavit, the court issued a resolution^[3] on 7 August 1997 recommending the filing of an information for rape.

On 11 September 1995 Capiz Asst. Provincial Prosecutor Edwin Devano filed against CESAR three separate informations for rape before the Regional Trial Court of Roxas City which docketed the cases as Criminal Case No. C-4766, Criminal Case No. C-4767, and Criminal Case No. C-4768. The accusatory portions of the informations read as follows:

Criminal Case No. C-4766:

That sometime on one evening in the month of November 1994, at Brgy. Jamul-awon, Panay, Capiz, Philippines, and within the jurisdiction of this Honorable Court, abovenamed accused, motivated with lewdness, and taking advantage of the fact that the offended party, HELEN BALINARIO was soundly asleep and unconscious, did then and there wilfully, unlawfully and feloniously succeeded in having carnal knowledge of the latter against her will, and thereby resulting to the pregnancy of the latter.

The crime was aggravated by the fact that the offended party is the stepdaughter of the accused and a girl of only eleven (11) years of age at the time of the commission of the offense.

CONTRARY TO LAW.^[4]

Criminal Case No. C-4767:

That sometime in one evening in the month of December 1994, at Brgy. Jamul-awon, Panay, Capiz, Philippines, and within the jurisdiction of this Honorable court, said accused, with lewdness and by means of threats and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant HELEN BALINARIO against her will and thereby resulting to the pregnancy of the latter.

The crime was aggravated by the fact that the offended party is the stepdaughter of the accused and a girl of only eleven (11) years of age at the time of the commission of the offense.

CONTRARY TO LAW.^[5]

Criminal Case No. C-4768:

That sometime in one evening in January 1995, at Brgy. Jamul-awon, Panay, Capiz, Philippines, and within the jurisdiction of this Honorable Court, abovenamed accused, motivated by lewd design and by means of force and intimidation did then and there wilfully, unlawfully and feloniously succeeded in having carnal knowledge, with complainant HELEN BALINARIO against the will of the latter, and thereby resulting to her pregnancy.

The crime was aggravated by the fact that the offended party is the stepdaughter of the accused and a girl of barely over twelve (12) years of age only at the time of the commission of the offense.

CONTRARY TO LAW.^[6]

The cases were consolidated and after CESAR entered a plea of not guilty in each case during his arraignment,^[7] joint trial was had.

The evidence for the prosecution established the following facts:

HELEN, who was born on 23 December 1982^[8] testified that sometime in the month of November 1994, at around 6:00 in the morning, her mother, Visitacion, left for Sigma, Capiz, together with her younger sister Hendreza, to buy merchandise in connection with her buy-and-sell business. HELEN was then left behind with CESAR to do the household chores.^[9] Visitacion and Hendreza did not return home that night so HELEN and CESAR had their supper together. As they were about to finish eating, CESAR gave her a glass of water which she drank. Thereafter, HELEN immediately felt dizzy and sleepy so she asked permission from CESAR to go to sleep early.^[10]

When she woke up late the next morning, HELEN felt pain all over her body, especially on her thighs and genitalia. Sensing such pain and noticing bloodstains on her undergarment when she urinated, HELEN touched her vagina and discovered some blood on it.

She changed her underwear, after which saw CESAR and talked to him, but CESAR responded by warning her not to tell anybody about the incident and even tried to calm her by saying it might be due to her menstrual flow.^[11] But as she just had her menstrual period HELEN knew it could not be the reason.^[12] HELEN then suspected that CESAR did something to her.

Later that day, at around 5:00 in the afternoon, Visitacion and Hendreza arrived but as HELEN heeded the warning of CESAR she kept her suspicions to herself.

In December 1994, a few days before her birthday, Visitacion again left for Sigma, Capiz. She was not accompanied by Hendreza. At around 5:30 p.m. that day CESAR instructed Hendreza to buy cigarettes for him. With Hendreza away, CESAR surreptitiously entered the room where HELEN was folding and fixing their sun-dried laundry. Immediately, CESAR poked a gun at HELEN and mounted her, causing HELEN to fall on her back to the floor. HELEN tried to extricate herself from CESAR, who was then removing his underwear, but as CESAR was much stronger, her efforts proved futile. CESAR placed his handgun aside and forcibly removed HELEN's undergarments against her objections and struggles. Stripped of all her clothes, CESAR spread HELEN's legs and applied saliva on his penis. HELEN pleaded with CESAR but was instead pressed down to the floor. Then CESAR forced his penis into her vagina. HELEN felt pain, but she could not shout, as she was afraid of CESAR's threats that he would shoot them all. She endured the excruciating pain until her ordeal was over.^[13]

Afraid of CESAR's threats, HELEN kept mum about the incident.

As his lust was not satiated, CESAR ravished HELEN again sometime in January 1995, when Visitacion left once more with Hendreza for Sigma, Capiz. At around 8:00 in the evening of that day, CESAR asked her to help him set traps for crabs in the fishpond. HELEN did as she was told.^[14] On their way home, after placing the traps, CESAR suddenly pushed HELEN down the dike and forcibly mounted her. HELEN tried to escape and this time firmly told CESAR "you have already done this to me and that I have to tell mama" but her warning was simply ignored by CESAR who instead pulled down his shorts with one hand and embraced HELEN with the other hand to keep her from moving. Then CESAR spread her legs, took off her undergarments and inserted his penis into her vagina. HELEN again felt the pain as CESAR's penis intruded her womanhood. She begged and cried for him to stop but again to no avail as CESAR inflicted his bestial desire on her.^[15]

They returned home that evening without talking to each other except for the warning that CESAR gave HELEN that she should not tell anyone about the incident.^[16] For fear that he would kill her and her family, HELEN, again, kept secret what CESAR did to her.

In March 1995, suspecting that she was pregnant as she missed her menstrual period, HELEN finally mustered enough courage to tell her mother that she had been raped by CESAR several times. Thus, they consulted Dr. Delfin of the Roxas Memorial General Hospital.^[17] The examination revealed that HELEN had been pregnant for six (6) months and that her hymen exhibited old lacerations which could have been sustained a few months earlier.^[18] Thereafter, HELEN and Visitacion executed their respective sworn statements which were the basis for the filing of the criminal complaint before the court.

In his defense, CESAR who was single and 38 years old at the time he testified, declared that there is no truth to HELEN's allegation that last November 1994, he gave her a glass of water which made her dizzy and sleepy. What happened was that after taking his supper, he told HELEN he would make rounds at the fishpond, but as HELEN pleaded for him to go home early as she was afraid to be left alone, he returned home at around 7:30 that evening.^[19] While he was lying on the mat, HELEN laid beside him and told him that she would sleep with him as she was afraid to sleep alone. Aroused with the warmth of HELEN's legs, he told her: "for the meantime, you will have to do the obligation of your mother who is not here at present," to which HELEN replied: "I am afraid because this might reach the knowledge of my mother." CESAR then retorted: "it will never reach the knowledge of your mother except when you yourself tell her." Thereafter, he asked for the consent of HELEN who simply remained silent. Moments later, HELEN started to embrace him; so, he also embraced and kissed her until eventually they had sexual intercourse.^[20]

CESAR also denied having used a firearm to force HELEN to have sexual intercourse with him one evening in December 1994. According to him, Jeffrey Layo, the fishpond owner, prohibited him from possessing a firearm. However, CESAR recalled that in December 1994, he brought HELEN to the fishpond to place crab traps. On their way home, HELEN asked his permission to watch television at their neighbor's house. He refused. However, he later on acceded as HELEN made insinuations that she would not have intercourse with him if he would not allow her to watch television. Thus, they had sexual intercourse before HELEN left to watch television at their neighbor's house.^[21]

CESAR likewise denied having sexual intercourse with HELEN one evening in January 1995, at the dike owned by Jeffrey Layo because the guards securing the area kept roaming around. Besides, there was no reason for them to engage in sexual intercourse at the dike when they could freely do it at home,^[22] which they in fact did in that month at their house.

Finally, CESAR volunteered that after their January 1995 intercourse, he and HELEN had sexual intercourse several times more. In fact, they were planning to elope.^[23] But as the pregnancy of HELEN became evident and reached the knowledge of Visitacion, a complaint for rape was then lodged against him, and he was arrested by the police on 22 April 1995.^[24]

The trial court gave full faith and credit to HELEN's testimony and found CESAR's allegation that he and HELEN were lovers as highly incredible considering the established fact that HELEN, who was then barely eleven (11) years old was too young to be in love with him whom she called "tatay CESAR," being the common-law husband of Visitacion. In all the instances he ravished her, her mother was in a faraway barangay and HELEN was alone with him. She became "easy prey to the insatiable and satanic desire of" CESAR. The trial court further observed that "instead of acting in loco parentis (substitute parent) he ravaged his innocent and hapless step-daughter (sic) Helen Balinario, who was too young and innocent of the 'old ways of the world' like a hungry predator."

The trial court thus declared that rapes were committed as established by the evidence, each of which was attended by the qualifying circumstance of being committed by the common-law husband of the victim's mother, who is below eighteen (18) years old, under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. Accordingly, it rendered the judgment quoted at the beginning of this ponencia.

In his Appellant's Brief, CESAR submits this assigned error:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THREE (3) COUNTS OF RAPE DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.

In support of his lone assignment of error CESAR argues that in respect of the November 1994 alleged rape, no adequate evidence was offered as even HELEN merely had a suspicion as to what had happened after she felt dizzy and slept immediately after drinking water offered by CESAR. As to the sexual intercourses in December of 1994 and January 1995, "there are ample evidence showing that the sexual intercourses between private complainant and accused-appellant… were done freely and voluntarily," as shown by the following circumstances: (1) HELEN, despite her age, made mention during the trial of the unusual and uncommon terms as "orgasm" and "withdrawal," thereby showing that she is quite knowledgeable on matters concerning sex, which could only be because of actual sexual encounters in the past; (2) her ability to describe CESAR's sexual organ, thereby indicating familiarity with it, which could only be possible as a result of her sexual encounters with CESAR; (3) her cooperation as CESAR put back her panty; and (4) the unreasonable delay in reporting the incidents, which was done only after the discovery of HELEN's pregnancy.

On the whole, CESAR asserts that the totality of the evidence for the prosecution confirms the fact that he and HELEN were, indeed, lovers.

In the Appellee's Brief, the Office of the Solicitor General asserts that since CESAR admitted having had sexual intercourse with HELEN, who was then below twelve (12) years old, then the former's conviction for rape is inevitable even if HELEN had given her consent to such acts.

We find no cogent reason to overturn the finding of the trial court on the culpability of CESAR.

The trial court convicted the appellant for three (3) counts of rape under Article 335 of the Revised Penal Code which reads:

Article 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 and 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.

x x x.

Under the third circumstance, two elements must be established to hold the accused guilty of rape, namely: (1) that the accused had carnal knowledge of a woman, and (2) that the woman is below twelve years of age.^[25]

In the instant case, it is undisputed that HELEN was less than twelve (12) years old when CESAR had carnal knowledge of her in November 1994, which is the subject matter of Criminal Case No. C-4766. She was born on 23 December 1982 per her Certificate of Live Birth.^[26] As to this case, proof of the presence of either the first or second circumstance under Article 335, as amended, is irrelevant, and proof of consent of the woman is immaterial. Sexual intercourse with a woman below twelve years old is statutory rape. Her consent to the intercourse is involuntary because she is considered to have no will of her own.^[27]

As to the December 1994 incident, HELEN testified that the rape took place "one day in the month December 1994,"^[28] and that it happened on a date approaching her birthday on 23 December. Thus:

Q Now, can you not remember the exact date when the second incident happened in the month of December 1994?

A I cannot remember, your Honor.

Q But are you sure that it was in the month of December, 1994?

A Yes, your Honor.

Q What makes you remember that it was in the month of December, 1994?

A I remembered it very well because of my birthday and it is quite approaching when that incident happened.^[29]

From the foregoing, the December rape was committed before HELEN's twelfth birthday, i.e., when she was still less than twelve years old. Even if it were conceded that there was uncertainty as to the date of the incident and that it was resolved in favor of CESAR, still the prosecution's evidence had established that he used threats and intimidation to force her to submit to his bestial desires. He used a handgun to threaten her.^[30] Rape was thus committed under the first circumstance under Article 335, as amended.

As to the sexual assault on one evening in January 1995, at the dike, it was established by HELEN's testimony that while on their way home from the fishpond, CESAR suddenly pushed her to the dike; she fell to the ground face up; he then mounted her and embraced her. She tried to extricate herself, but to no avail and when she warned him that if he did not stop she would tell her "Mama" Visitacion, he threatened to kill her. He pulled down his shorts and also her shorts and panty with the use of his foot. He then stretched and spread her thighs and placed his thighs between hers and inserted his penis into her vagina. She felt pain.^[31] Rape was thus committed under the first circumstance under Article 335, as amended.

CESAR's tale that he and HELEN were lovers is simply preposterous. To us, it taxes one's credulity beyond limit; offends sensibilities and insults the intelligence even of an average man. It is inconceivable and unimaginable that HELEN, at her tender age and sweet innocence, against whom no proof of sexual perversity or of loose morality had been shown, would willingly have sex with a man more than twenty (20) years her senior and whom she has treated as her father, being her mother's common-law husband. Thus, as there is no evidence that she is a sexual pervert, a sex maniac, or a prostitute, HELEN could not have acted the way CESAR pictured her to be.^[32]

Neither are we impressed with CESAR's argument that HELEN's actuation/reaction confirmed their mutual love and affection. We have long recognized that people react differently to a given situation, and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience. One person's spontaneous response may be aggression, while another's may be cold indifference.^[33] Consequently, HELEN's inexplicable actuation only conformed to the natural reaction of a bewildered victim of a sexual assault.

As for the delay in the reporting of the sexual assaults, jurisprudence has established that delay in revealing the commission of rape is not an indication of a fabricated charge. It must be remembered that HELEN was continuously threatened by CESAR. In People v. Geromo,^[34] we held that intimidation must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is enough that the intimidation produces a fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment, or even thereafter, as when she is threatened with death should she report the incident. Therefore, CESAR should not be made to derive comfort from such delay, in light of the fact that HELEN was actually hampered by the fear successfully implanted on her mind by the appellant himself. Besides, no one can expect a girl, like HELEN, who was then less twelve (12) years old when she was first sexually assaulted to act like an adult or a mature and experienced woman who would have the courage and intelligence to disregard a threat to her life.^[35]

CESAR's attempt to discredit HELEN's morality is unfounded. The words "orgasm" and "withdrawal" were the English translation of the words in the dialect used by HELEN to describe certain acts or movements by CESAR. In any event, it has been held that the moral character of a rape victim is immaterial in the prosecution and conviction of the accused for even prostitutes can be victims of rape.^[36] Moreover, CESAR offered no credible evidence that HELEN was impelled by any ulterior motive to fabricate a story of defloration against him. Accordingly, the presumption that she was not actuated by any improper motive stands.^[37]

While CESAR's guilt was proven beyond reasonable doubt, we do not, however, concur with the trial court's imposition of the death penalty, done solely on the basis of the relationship between CESAR and HELEN, in light of Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, which partly states:

The death penalty shall be imposed if the crime is committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is the 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.

A reading of the informations in the three cases reveals that HELEN was described as the "stepdaughter" of CESAR. That allegation is inaccurate. HELEN is not CESAR's "stepdaughter" and neither was CESAR HELEN's "stepfather," for that relationship presupposes a legitimate relationship, i.e., CESAR should have been married to Visitacion after the latter's previous marriage to HELEN's father was dissolved. A stepdaughter is the daughter of one's wife or husband by a former marriage,^[38] or, a stepfather is the husband of one' mother by virtue of a marriage subsequent to that of which the person spoken of is the offspring.^[39]

We have consistently declared that the circumstances under the amendatory provisions of Section 11 of R.A. No. 7659, the attendance of which could mandate the imposition of the single indivisible penalty of death, are in the nature of qualifying circumstances which cannot be proved as such unless alleged in the information, and even if proved, the death penalty cannot be imposed.^[40] Unlike a generic aggravating circumstance which may be proved even if not alleged,^[41] a qualifying aggravating cannot be proved as a generic aggravating circumstance if so included among those enumerated in the Code.^[42]

Thus, to impose the death penalty on the basis of this relationship, which has not been accurately alleged in the information, would violate CESAR's constitutional and statutory right to be informed of the nature and cause of the accusation against him. Obviously, in the instant case, the technical flaw committed cannot be ignored, and it constrains us to reduce the penalty of death imposed by the trial court to that of reclusion perpetua.

As to the civil aspect of these cases, the trial court awarded HELEN the amount of P150,000 as indemnity. We understand this to be the total at the rate of P50,000 in each case in line with prevailing jurisprudence.^[43] In addition, as held in People v. Prades,^[44] the amount of P50,000 as moral damages must also be awarded to HELEN for each count of rape without need for pleading or proof of the basis thereof. The fact that the complainant in rape has suffered the trauma of mental and psychological sufferings which constitute the basis for moral damages is too obvious to still require recital thereof at the trial by the victim since we assume and acknowledge such agony on her part as a gauge of her credibility. Since CESAR committed the rapes with obvious abuse of confidence, which is an aggravating circumstance,^[45] exemplary damages pursuant to Article 2230 of the Civil Code, which we fix at P25,000 in each case may be awarded to HELEN.

The trial court correctly decreed that CESAR should recognize and support Rey Balinario, the offspring of CESAR's bestial desire.^[46] Compulsory acknowledgement, as well as the support of the child, is indeed proper there being no legal impediment in doing so since CESAR and HELEN are both single.^[47] Article 345 of the Revised Penal Code provides that a person guilty of rape, seduction or abduction shall be sentenced to indemnify the offended woman, acknowledge the offspring, unless the law should prevent him from so doing, and in every case to support the offspring.

WHEREFORE, the decision of the Regional Trial Court of Roxas City, Branch 14 in Criminal Case Nos. C-4766 to 4668 finding accused-appellant CESAR MELENDRES y BEJO guilty beyond reasonable doubt of three counts of rape is AFFIRMED, with the MODIFICATION that: (a) the penalty in each case is reduced from DEATH to reclusion perpetua and (b) in addition to the P50,000 indemnity for each count of rape, the appellant is further ordered to pay in each case an additional amount of P50,000 as moral damages and P25,000 as exemplary damages.

Costs de oficio.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, JJ., concur.

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^[1] Article 47 of the Revised Penal Code, as amended by R.A. No. 7659.

^[2] Per Judge Salvador S. Gubaton. Rollo, 28-42.

^[3] OR, 14-15.

^[4] Id., 21-22; Rollo, 8-9.

^[5] OR, Crim. Case No. C-4747, 2-3; Rollo, 12.

^[6] OR, Crim. Case No. C-4748, 57; Id., 10.

^[7] OR, 84.

^[8] Exhibit "C"; Id., 254.

^[9] TSN, 3 September 1996, 12-13.

^[10] TSN, 3 September 1996, 17.

^[11] Id., 18-19.

^[12] Id., 19.

^[13] TSN, 3 September 1996, 21-30.

^[14] TSN, 5 September 1996, 5-7.

^[15] Id., 8-11.

^[16] Id., 14.

^[17] Id., 19-20.

^[18] Exhibit "F"; OR, 5-6.

^[19] TSN, 8 November 1996, 4; 8.

^[20] Id., 8-9.

^[21] Id., 10-11.

^[22] TSN, 8 November 1996, 12.

^[23] Id.,

^[24] Id., 13-14.

^[25] People v. Ibay, 233 SCRA 17 [1994] ; People v. Andres, 253 SCRA 755 [1996] .

^[26] OR, 254.

^[27] People v. Palicte, 229 SCRA 543 [1994] ; People v. Repollo, 237 SCRA 476 [1994] ; People v. Gagto, 253 SCRA 455 [1996] ; People v. Andres, supra note 25.

^[28] TSN, 3 September 1996, 21.

^[29] TSN, 3 September 1996, 33-34.

^[30] Id., 24-25.

^[31] TSN, 5 September 1996, 8-11.

^[32] People v. Malunes, 247 SCRA 318, 327 [1995].

^[33] People v. Mamac, G.R. No. 130332, 31 May 2000.

^[34] G.R. No. 126169, 21 December 1999.

^[35] People v. Malunes, supra note 32.

^[36] People v. Raptus, 198 SCRA 425, 433 [1991] ; People v. Edualino, 271 SCRA 189 [1997] .

^[37] People v. Ramos, 222 SCRA 557 [1993]; People v. Geromo, supra note 34.

^[38] People v. Dimapilis, 300 SCRA 279, 308 [1998] ; People v. Tolentino, 308 SCRA 485, 495 [1998] .

^[39] People v. Tolentino, supra note 38.

^[40] People v. Ilao, 296 SCRA 658 [1998] ; People v. Bartolome, G.R. No. 133987, 28 January 2000.

^[41] People v. Dimapilis, supra note 38.

^[42] People v. Guba, 42 SCRA 109 [1971] ; People v. Lacao, 60 SCRA 89 [1974] .

^[43] People v. Caballero, 258 SCRA 541 [1996] ; People v. Abordo, 258 SCRA 571 [1996] ; People v. Mamac, supra note 33.

^[44] 293 SCRA 411[1998] .

^[45] Article 14(4), Revised Penal Code.

^[46] Exhibit "A," OR, 252.

^[47] People v. Namayan, 246 SCRA 657 [1995] .