THIRD DIVISION
[ G.R. No. 193854, September 24, 2012 ]PEOPLE v. DINA DULAY Y PASCUAL +
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. DINA DULAY Y PASCUAL, APPELLANT
D E C I S I O N.
PEOPLE v. DINA DULAY Y PASCUAL +
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. DINA DULAY Y PASCUAL, APPELLANT
D E C I S I O N.
PERALTA, J.:
This is to resolve an appeal from the Decision[1] dated August 4, 2010 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03725 affirming with modification the Decision[2] dated October 8, 2008 of the Regional Trial
Court (RTC), Branch 194, Parañaque City, finding appellant Dina Dulay guilty beyond reasonable doubt of the crime of Rape under Article 266-A, No. 1 (a) of the Revised Penal Code (RPC) as amended by Republic Act (R.A.) 8353 as a co-principal by indispensable cooperation.
The records bear the following factual antecedents:
Private complainant AAA[3] was 12 years old when the whole incident happened. AAA's sister introduced the appellant to AAA as someone who is nice. Thereafter, appellant convinced AAA to accompany her at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they went to a casino to look for appellant's boyfriend, but since he was not there, they went to Sto. Niño at Don Galo. However, appellant's boyfriend was also not there. When they went to Bulungan Fish Port along the coastal road to ask for some fish, they saw appellant's boyfriend. Afterwards, AAA, appellant and the latter's boyfriend proceeded to the Kubuhan located at the back of the Bulungan Fish Port. When they reached the Kubuhan, appellant suddenly pulled AAA inside a room where a man known by the name "Speed" was waiting. AAA saw "Speed" give money to appellant and heard "Speed" tell appellant to look for a younger girl. Thereafter, "Speed" wielded a knife and tied AAA's hands to the papag and raped her. AAA asked for appellant's help when she saw the latter peeping into the room while she was being raped, but appellant did not do so. After the rape, "Speed" and appellant told AAA not to tell anyone what had happened or else they would get back at her.
AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San Dionisio. Thereafter, the barangay officials of San Dionisio referred the complaint to the police station.
The Parañaque City Police Office (Women's and Children Concern Desk) asked the assistance of the Child Protection Unit of the Philippine General Hospital, upon which the latter assigned the case to Dr. Merle Tan. Consequently, with the consent of AAA and her mother, and in the presence of a social worker of the Department of Social Welfare and Development (DSWD), Dr. Tan conducted the requisite interview and physical examination on AAA. Later on, Dr. Tan issued a Medico-Legal Report[4] stating that there was no evident injury in the body of AAA, but medical evaluation cannot exclude sexual abuse. During her testimony, Dr. Tan explained that such impression or conclusion pertains to the ano-genital examination and also stated that she found multiple abrasions on the back portion of the body of AAA.[5]
Thus, an Information was filed, which reads as follows:
To support the above allegations, the prosecution presented the testimonies of AAA and Dr. Merle Tan. On the other hand, the defense presented the sole testimony of appellant which can be summarized as follows:
Appellant met AAA a few days before June 2005 when the latter was introduced to her by her cousin Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin of appellant was AAA's neighbor at Palanyag. Around 1 o'clock in the morning of July 3, 2005, appellant averred that she was at La Huerta, at the Bulungan Fish Port in Parañaque City with her cousin Eglay and stayed there for about thirty (30) minutes. They then proceeded to the house of appellant's cousin in Palanyag. In the said house, appellant saw "Speed" and two (2) other male persons. She also saw AAA who was engaged in a conversation with "Speed" and his two (2) companions. She asked AAA what she was doing there and the latter said that it was none of her business ("wala kang pakialam sa akin"). Because of the response of AAA, appellant left the house and went home to General Trias, Cavite.
On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the crime of rape as co-principal by indispensable cooperation. The dispositive portion of the decision reads:
Not satisfied with the judgment of the trial court, the appellant brought the case to the CA. The latter, on August 4, 2010, promulgated its decision affirming the ruling of the RTC with a modification on the award of damages, thus:
Hence, the present appeal.
In her Brief, appellant assigned the following errors:
The Office of the Solicitor General, representing the appellee, refutes the above assignment of errors by stating the following arguments:
An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision on the basis of grounds other than those that the parties raised as errors.[12]
The appellant in this case was charged in the Information as having committed the crime of Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610. She was eventually convicted by the trial court of the crime of rape as a co-principal by indispensable cooperation and was sentenced to suffer imprisonment of reclusion perpetua as provided under Article 266-B of the RPC.
In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA, ratiocinated:
However, this Court is of another view and does not subscribe to the findings of the trial court, as sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by indispensable cooperation in the crime of rape.
Under the Revised Penal Code,[14] an accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. To be a principal by indispensable cooperation, one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the commission of the offense by performing another act without which it would not have been accomplished.[15] Nothing in the evidence presented by the prosecution does it show that the acts committed by appellant are indispensable in the commission of the crime of rape. The events narrated by the CA, from the time appellant convinced AAA to go with her until appellant received money from the man who allegedly raped AAA, are not indispensable in the crime of rape. Anyone could have accompanied AAA and offered the latter's services in exchange for money and AAA could still have been raped. Even AAA could have offered her own services in exhange for monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect of the appellant in the crime of rape. It must be remembered that in the Information, as well as in the testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped by "Speed." Thus:
It must be clear that this Court respects the findings of the trial court that AAA was indeed raped by considering the credibility of the testimony of AAA. The rule is that factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on appeal.[18] However, the review of a criminal case opens up the case in its entirety. The totality of the evidence presented by both the prosecution and the defense are weighed, thus, avoiding general conclusions based on isolated pieces of evidence.[19] In the case of rape, a review begins with the reality that rape is a very serious accusation that is painful to make; at the same time, it is a charge that is not hard to lay against another by one with malice in her mind. Because of the private nature of the crime that justifies the acceptance of the lone testimony of a credible victim to convict, it is not easy for the accused, although innocent, to disprove his guilt. These realities compel [this Court] to approach with great caution and to scrutinize the statements of a victim on whose sole testimony conviction or acquittal depends.[20]
In this light, while this Court does not find appellant to have committed the crime of rape as a principal by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610, or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, which states that:
The elements of paragraph (a) are:
Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for profit.[23]
As alleged in the Information and proven through the testimony of AAA, appellant facilitated or induced child prostitution. 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.[24] Thus, the act of apellant in convincing AAA, who was 12 years old at that time, to go with her and thereafter, offer her for sex to a man in exchange for money makes her liable under the above-mentioned law. The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development.[25] A child exploited in prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However, we have held that a child who is "a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition" is incapable of giving rational consent[26] to any lascivious act or sexual intercourse.
It must be noted that in the Information, it was alleged that appellant was accused of Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610, and then went on to enumerate the elements of Section 5 (a) of R.A. 7610 in its body. The Information partly reads:
Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant acting as a procurer of a child and inducing the latter into prostitution. It must be remembered that the character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information.[28] The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a crime and sufficiently apprises the accused of the nature and cause of the accusation against him.[29]
To dispute the allegation and the evidence presented by the prosecution, appellant merely interposes the defense of denial. It is well settled that denial is essentially the weakest form of defense and it can never overcome an affirmative testimony, particularly when it comes from the mouth of a credible witness.[30]
Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law.[31] Notwithstanding that R.A. 7610 is a special law, appellant may enjoy the benefits of the Indeterminate Sentence Law.[32] Since the penalty provided in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law.[33] Thus, appellant is entitled to a maximum term which should be within the range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months).[34]
As to the award of damages, the same must be consistent with the objective of R.A. 7610 to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same.[35] Therefore, civil indemnity to the child is proper in a case involving violation of Section 5 (a), Article III of R.A. 7610. This is also in compliance with Article 100 of the RPC which states that every person criminally liable is civilly liable. Hence, the amount of P50,000.00 civil indemnity ex delicto as awarded in cases of violation of Section 5 (b), Article III of R.A. 7610[36] shall also be the same in cases of violation of Section 5 (a), Article III of R.A. 7610.
WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the crime of rape, but of violating Section 5 (a), Article III of R.A. 7610, as amended, for which she is sentenced to fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as maximum. Appellant is also ordered to pay AAA the amount of P50,000.00 as civil indemnity.
SO ORDERED.
Velasco, Jr., (Chairperson), Perez,* Mendoza, and Perlas-Bernabe,** JJ., concur.
* Designated Acting Member, per Special Order No. 1299 dated August 28, 2012
** Designated Acting Member, in lieu of Associate Justice Roberto A. Abad, per Special Order No. 1320 dated September 21, 2012.
[1] Penned by Associate Justice Marlene B. Gonzales-Sison, with Associate Justices Noel G. Tijam and Danton Q. Bueser, concurring; rollo, pp. 2-14.
[2] Penned by Judge Leoncia Real-Dimagiba; CA rollo, pp. 48-53.
[3] In line with this Court's ruling in People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 426, citing Rule on Violence Against Women and their Children, Sec. 40; Rules and Regulations Implementing Republic Act No. 9262, Rule XI, Sec. 63, otherwise known as the "Anti-Violence Against Women and their Children Act," the real names of the rape victims will not be disclosed. This Court will instead use fictitious initials to represent them throughout the decision. The personal circumstances of the victims or any other information tending to establish or compromise their identities will likewise be withheld.
[4] Exhibit "C."
[5] TSN, November 27, 2006, pp. 12-13.
[6] Records, p. 1.
[7] Id. at 19.
[8] Id. at 208.
[9] Rollo, pp. 13-14.
[10] CA rollo, p. 39.
[11] Id. at 72.
[12] People v. Listerio, G.R. No. 122099, July 5, 2000, 335 SCRA 40, 65.
[13] Rollo, pp. 7-8.
[14] Revised Penal Code, Art. 17.
[15] People v. Jorge, G.R. No. 99379, April 22, 1994, 231 SCRA 693, 699.
[16] TSN, November 16, 2005, pp. 7-15. (Emphasis supplied.)
[17] TSN, November 16, 2005, pp. 17-19.
[18] People v. Lim, G.R. No. 141699, August 7, 2002, 386 SCRA 581, 593; People v. Pacis, G.R. No. 146309, July 18, 2002, 384 SCRA 684.
[19] People v. Fabito, G.R. No. 179933, April 16, 2009, 585 SCRA 591, 603, citing People v. Larrañaga, G.R. Nos. 138874-75, July 21, 2005, 463 SCRA 652.
[20] Id. at 603-604, citing People v. Fernandez, G.R. Nos. 139341-45, July 25, 2002, 385 SCRA 224, 232.
[21] Emphasis supplied.
[22] Malto v. People of the Philippines, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 655-656.
[23] Id. at 656.
[24] R.A. 7610, Sec. 5.
[25] R.A. 7610, Sec. 2.
[26] People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 134-135, citing People v. Manlapaz, No. L-41819, February 28, 1979, 88 SCRA 704.
[27] Records, p. 1.
[28] Reyes v. Camilon, G.R. No. 46198, December 20, 1990, 192 SCRA 445, 453.
[29] Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465, 482.
[30] People v. Mendoza, 490 Phil. 737, 746 (2005).
[31] Malto v. People of the Philippines, supra note 22, citing People v. Delantar, supra note 26, at 135.
[32] Id., citing People v. Bon, G.R. No. 149199, January 28, 2003, 396 SCRA 506, 516.
[33] Id., citing Cadua v. Court of Appeals, G.R. No. 123123, August 19, 1999, 312 SCRA 703, 725, citing People v. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555. Section 1 of the Indeterminate Sentence Law provides:
SECTION 1. G..R.No. 93028. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied)
Simon ruled:
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. (Emphasis supplied)
Cadua applied this rule by analogy and extension.
[34] Id.
[35] Id., citing Civil Code, Art. 20.
[36] Id.
The records bear the following factual antecedents:
Private complainant AAA[3] was 12 years old when the whole incident happened. AAA's sister introduced the appellant to AAA as someone who is nice. Thereafter, appellant convinced AAA to accompany her at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they went to a casino to look for appellant's boyfriend, but since he was not there, they went to Sto. Niño at Don Galo. However, appellant's boyfriend was also not there. When they went to Bulungan Fish Port along the coastal road to ask for some fish, they saw appellant's boyfriend. Afterwards, AAA, appellant and the latter's boyfriend proceeded to the Kubuhan located at the back of the Bulungan Fish Port. When they reached the Kubuhan, appellant suddenly pulled AAA inside a room where a man known by the name "Speed" was waiting. AAA saw "Speed" give money to appellant and heard "Speed" tell appellant to look for a younger girl. Thereafter, "Speed" wielded a knife and tied AAA's hands to the papag and raped her. AAA asked for appellant's help when she saw the latter peeping into the room while she was being raped, but appellant did not do so. After the rape, "Speed" and appellant told AAA not to tell anyone what had happened or else they would get back at her.
AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San Dionisio. Thereafter, the barangay officials of San Dionisio referred the complaint to the police station.
The Parañaque City Police Office (Women's and Children Concern Desk) asked the assistance of the Child Protection Unit of the Philippine General Hospital, upon which the latter assigned the case to Dr. Merle Tan. Consequently, with the consent of AAA and her mother, and in the presence of a social worker of the Department of Social Welfare and Development (DSWD), Dr. Tan conducted the requisite interview and physical examination on AAA. Later on, Dr. Tan issued a Medico-Legal Report[4] stating that there was no evident injury in the body of AAA, but medical evaluation cannot exclude sexual abuse. During her testimony, Dr. Tan explained that such impression or conclusion pertains to the ano-genital examination and also stated that she found multiple abrasions on the back portion of the body of AAA.[5]
Thus, an Information was filed, which reads as follows:
That on or about the 3rd day of July 2005, in the City of Parañaque, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with one alias "Speed," whose true name and identity and present whereabouts is still unknown, and both of them mutually helping and aiding one another, the herein accused Dina P. Dulay having delivered and offered for a fee complainant AAA, 12 year old minor, to accused alias "Speed," who with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge on said minor complainant AAA against her will and without her consent, which act is prejudicial to the normal growth and development of the said child.With the assistance of counsel de oficio, on August 3, 2005, appellant entered a plea of not guilty.[7] Therafter, trial on the merits ensued.
CONTRARY TO LAW.[6]
To support the above allegations, the prosecution presented the testimonies of AAA and Dr. Merle Tan. On the other hand, the defense presented the sole testimony of appellant which can be summarized as follows:
Appellant met AAA a few days before June 2005 when the latter was introduced to her by her cousin Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin of appellant was AAA's neighbor at Palanyag. Around 1 o'clock in the morning of July 3, 2005, appellant averred that she was at La Huerta, at the Bulungan Fish Port in Parañaque City with her cousin Eglay and stayed there for about thirty (30) minutes. They then proceeded to the house of appellant's cousin in Palanyag. In the said house, appellant saw "Speed" and two (2) other male persons. She also saw AAA who was engaged in a conversation with "Speed" and his two (2) companions. She asked AAA what she was doing there and the latter said that it was none of her business ("wala kang pakialam sa akin"). Because of the response of AAA, appellant left the house and went home to General Trias, Cavite.
On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the crime of rape as co-principal by indispensable cooperation. The dispositive portion of the decision reads:
WHEREFORE, finding Accused Danilo guilty beyond reasonable doubt for rape as a co-principal by indispensable cooperation, she is hereby sentenced to suffer an imprisonment of Reclusion Perpetua under Article 266-B of the Revised Penal Code and to pay the offended party the amount of P50,000.00 by way of damages.
The period of her detention shall be considered part of the service of her sentence.
SO ORDERED.[8]
Not satisfied with the judgment of the trial court, the appellant brought the case to the CA. The latter, on August 4, 2010, promulgated its decision affirming the ruling of the RTC with a modification on the award of damages, thus:
WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify the offended party the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages and Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages.
SO ORDERED.[9]
Hence, the present appeal.
In her Brief, appellant assigned the following errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF RAPE AS CO-PRINCIPAL BY INDISPENSABLE COOPERATION.
II
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PRIVATE COMPLAINANT [AAA].[10]
The Office of the Solicitor General, representing the appellee, refutes the above assignment of errors by stating the following arguments:
I.
CONSPIRACY WAS CLEARLY ESTABLISHED IN THIS CASE.
II.
THE LOWER COURT DID NOT ERR IN BELIEVING THE TESTIMONY OF PRIVATE COMPLAINANT.
III.
ACCUSED-APPELLANT'S DEFENSE OF DENIAL CANNOT BE GIVEN GREATER EVIDENTIARY WEIGHT THAN THE POSITIVE TESTIMONY OF PRIVATE COMPLAINANT.[11]
An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision on the basis of grounds other than those that the parties raised as errors.[12]
The appellant in this case was charged in the Information as having committed the crime of Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610. She was eventually convicted by the trial court of the crime of rape as a co-principal by indispensable cooperation and was sentenced to suffer imprisonment of reclusion perpetua as provided under Article 266-B of the RPC.
In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA, ratiocinated:
To cooperate means to desire or wish in common a thing. But that common will or purpose does not necessarily mean previous understanding, for it can be explained or inferred from the circumstances of each case. The cooperation must be indispensable, that is, without which the commission of the crime would not have been accomplished. x x x
x x x x
The proven facts and circumstances obtaining in this case fall squarely on the above-cited example. It will be noted that the cooperation of the accused-appellant consisted in performing an act which is different from the act of execution of the crime committed by the rapist. Accused-appellant cooperated in the perpetration of the crime of rape committed by "Speed" by acts without which the crime would not have been consummated, since she prepared the way for the perpetration thereof, convinced the victim to go with her under the guise of looking for her boyfriend and upon arrival at the kubuhan, she pulled the victim inside a room where "Speed" was waiting, delivered the victim to him, and then after receiving some amount of money from "Speed" she settled in another room together with her boyfriend so that "Speed" might freely consummate the rape with violence and intimidation, as he did.[13]
However, this Court is of another view and does not subscribe to the findings of the trial court, as sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by indispensable cooperation in the crime of rape.
Under the Revised Penal Code,[14] an accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. To be a principal by indispensable cooperation, one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the commission of the offense by performing another act without which it would not have been accomplished.[15] Nothing in the evidence presented by the prosecution does it show that the acts committed by appellant are indispensable in the commission of the crime of rape. The events narrated by the CA, from the time appellant convinced AAA to go with her until appellant received money from the man who allegedly raped AAA, are not indispensable in the crime of rape. Anyone could have accompanied AAA and offered the latter's services in exchange for money and AAA could still have been raped. Even AAA could have offered her own services in exhange for monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect of the appellant in the crime of rape. It must be remembered that in the Information, as well as in the testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped by "Speed." Thus:
Now, do you know how much this Dina Dulay was paid by that person who was you said raped you?
At the Kubuhan, Sir.
And, how did you feel at that time when the organ of this man was inserted into your organ?
And, how did you react when as you said you were being raped by this person?
Only one (1) [AAA], Sir.[17]
It must be clear that this Court respects the findings of the trial court that AAA was indeed raped by considering the credibility of the testimony of AAA. The rule is that factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on appeal.[18] However, the review of a criminal case opens up the case in its entirety. The totality of the evidence presented by both the prosecution and the defense are weighed, thus, avoiding general conclusions based on isolated pieces of evidence.[19] In the case of rape, a review begins with the reality that rape is a very serious accusation that is painful to make; at the same time, it is a charge that is not hard to lay against another by one with malice in her mind. Because of the private nature of the crime that justifies the acceptance of the lone testimony of a credible victim to convict, it is not easy for the accused, although innocent, to disprove his guilt. These realities compel [this Court] to approach with great caution and to scrutinize the statements of a victim on whose sole testimony conviction or acquittal depends.[20]
In this light, while this Court does not find appellant to have committed the crime of rape as a principal by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610, or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, which states that:
Section 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution.[21]
The elements of paragraph (a) are:
- the accused engages in, promotes, facilitates or induces child prostitution;
- the act is done through, but not limited to, the following means:
- acting as a procurer of a child prostitute;
- inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means;
- taking advantage of influence or relationship to procure a child as a prostitute;
- threatening or using violence towards a child to engage him as a prostitute; or
- giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution;
- the child is exploited or intended to be exploited in prostitution and
- the child, whether male or female, is below 18 years of age.[22]
Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph (a), the child is abused primarily for profit.[23]
As alleged in the Information and proven through the testimony of AAA, appellant facilitated or induced child prostitution. 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.[24] Thus, the act of apellant in convincing AAA, who was 12 years old at that time, to go with her and thereafter, offer her for sex to a man in exchange for money makes her liable under the above-mentioned law. The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development.[25] A child exploited in prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However, we have held that a child who is "a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition" is incapable of giving rational consent[26] to any lascivious act or sexual intercourse.
It must be noted that in the Information, it was alleged that appellant was accused of Rape under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A. 7610, and then went on to enumerate the elements of Section 5 (a) of R.A. 7610 in its body. The Information partly reads:
x x x the herein accused Dina P. Dulay having delivered and offered for a fee complainant AAA, 12 year old minor, to accused alias "Speed," who with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge on said minor complainant AAA against her will and without her consent x x x [27]
Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant acting as a procurer of a child and inducing the latter into prostitution. It must be remembered that the character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information.[28] The sufficiency of an information is not negated by an incomplete or defective designation of the crime in the caption or other parts of the information but by the narration of facts and circumstances which adequately depicts a crime and sufficiently apprises the accused of the nature and cause of the accusation against him.[29]
To dispute the allegation and the evidence presented by the prosecution, appellant merely interposes the defense of denial. It is well settled that denial is essentially the weakest form of defense and it can never overcome an affirmative testimony, particularly when it comes from the mouth of a credible witness.[30]
Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law.[31] Notwithstanding that R.A. 7610 is a special law, appellant may enjoy the benefits of the Indeterminate Sentence Law.[32] Since the penalty provided in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate Sentence Law.[33] Thus, appellant is entitled to a maximum term which should be within the range of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17 years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months).[34]
As to the award of damages, the same must be consistent with the objective of R.A. 7610 to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same.[35] Therefore, civil indemnity to the child is proper in a case involving violation of Section 5 (a), Article III of R.A. 7610. This is also in compliance with Article 100 of the RPC which states that every person criminally liable is civilly liable. Hence, the amount of P50,000.00 civil indemnity ex delicto as awarded in cases of violation of Section 5 (b), Article III of R.A. 7610[36] shall also be the same in cases of violation of Section 5 (a), Article III of R.A. 7610.
WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the crime of rape, but of violating Section 5 (a), Article III of R.A. 7610, as amended, for which she is sentenced to fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as maximum. Appellant is also ordered to pay AAA the amount of P50,000.00 as civil indemnity.
SO ORDERED.
Velasco, Jr., (Chairperson), Perez,* Mendoza, and Perlas-Bernabe,** JJ., concur.
* Designated Acting Member, per Special Order No. 1299 dated August 28, 2012
** Designated Acting Member, in lieu of Associate Justice Roberto A. Abad, per Special Order No. 1320 dated September 21, 2012.
[1] Penned by Associate Justice Marlene B. Gonzales-Sison, with Associate Justices Noel G. Tijam and Danton Q. Bueser, concurring; rollo, pp. 2-14.
[2] Penned by Judge Leoncia Real-Dimagiba; CA rollo, pp. 48-53.
[3] In line with this Court's ruling in People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 426, citing Rule on Violence Against Women and their Children, Sec. 40; Rules and Regulations Implementing Republic Act No. 9262, Rule XI, Sec. 63, otherwise known as the "Anti-Violence Against Women and their Children Act," the real names of the rape victims will not be disclosed. This Court will instead use fictitious initials to represent them throughout the decision. The personal circumstances of the victims or any other information tending to establish or compromise their identities will likewise be withheld.
[4] Exhibit "C."
[5] TSN, November 27, 2006, pp. 12-13.
[6] Records, p. 1.
[7] Id. at 19.
[8] Id. at 208.
[9] Rollo, pp. 13-14.
[10] CA rollo, p. 39.
[11] Id. at 72.
[12] People v. Listerio, G.R. No. 122099, July 5, 2000, 335 SCRA 40, 65.
[13] Rollo, pp. 7-8.
[14] Revised Penal Code, Art. 17.
[15] People v. Jorge, G.R. No. 99379, April 22, 1994, 231 SCRA 693, 699.
[16] TSN, November 16, 2005, pp. 7-15. (Emphasis supplied.)
[17] TSN, November 16, 2005, pp. 17-19.
[18] People v. Lim, G.R. No. 141699, August 7, 2002, 386 SCRA 581, 593; People v. Pacis, G.R. No. 146309, July 18, 2002, 384 SCRA 684.
[19] People v. Fabito, G.R. No. 179933, April 16, 2009, 585 SCRA 591, 603, citing People v. Larrañaga, G.R. Nos. 138874-75, July 21, 2005, 463 SCRA 652.
[20] Id. at 603-604, citing People v. Fernandez, G.R. Nos. 139341-45, July 25, 2002, 385 SCRA 224, 232.
[21] Emphasis supplied.
[22] Malto v. People of the Philippines, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 655-656.
[23] Id. at 656.
[24] R.A. 7610, Sec. 5.
[25] R.A. 7610, Sec. 2.
[26] People v. Delantar, G.R. No. 169143, February 2, 2007, 514 SCRA 115, 134-135, citing People v. Manlapaz, No. L-41819, February 28, 1979, 88 SCRA 704.
[27] Records, p. 1.
[28] Reyes v. Camilon, G.R. No. 46198, December 20, 1990, 192 SCRA 445, 453.
[29] Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465, 482.
[30] People v. Mendoza, 490 Phil. 737, 746 (2005).
[31] Malto v. People of the Philippines, supra note 22, citing People v. Delantar, supra note 26, at 135.
[32] Id., citing People v. Bon, G.R. No. 149199, January 28, 2003, 396 SCRA 506, 516.
[33] Id., citing Cadua v. Court of Appeals, G.R. No. 123123, August 19, 1999, 312 SCRA 703, 725, citing People v. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555. Section 1 of the Indeterminate Sentence Law provides:
SECTION 1. G..R.No. 93028. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied)
Simon ruled:
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. (Emphasis supplied)
Cadua applied this rule by analogy and extension.
[34] Id.
[35] Id., citing Civil Code, Art. 20.
[36] Id.