SECOND DIVISION
[ G.R. No. 259827, December 04, 2023 ]
FELIX MARIANO Y PILAPIL, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
D E C I S I O N
KHO, JR., J.:
Before the Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assailing the Decision[2] dated February 26, 2021 and the Resolution[3] dated March 10, 2022 of the Court of Appeals (CA) in CA-G.R. CR No. 42454, which affirmed the Joint Decision[4] dated September 3, 2018 of xxxxxxxxxxx, Regional Trial Court, xxxxxxxxxxx City (RTC), finding petitioner Felix Mariano y Pilapil (Mariano) guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of Republic Act (RA) No. 7610[5] and theft under Article 308 in relation to Article 309(6) of the Revised Penal Code (RPC).
The Facts
This case stemmed from two Informations[6] filed before the RTC, charging Mariano with rape under Article 266-A(2) of the RPC and theft under Article 308 of the RPC, the accusatory portions of which read:
After Mariano sexually abused AAA, the former forcibly took the latter's iPhone 4S. During that time, police officers were patrolling around the area. Hence, when Mariano saw the police officers coming near them, he ran away, bringing with him AAA's cellphone. At once, AAA ran to the police officers and sought help as he reported the incident.[11]
The following day, at around 5:00 p.m., the police officers arrested Mariano in his house upon the positive identification of AAA. Mariano was then asked by Police Officer II Carlito Dematera, Jr. (PO2 Dematera, Jr.) where the cellphone was. Mariano surrendered the item right away, even replying in the affirmative when asked if he stole the cellphone. Upon confiscation of the cellphone, AAA successfully unlocked the same.[12]
On January 31, 2017, a medico-legal examination was conducted on AAA. The Medico-Legal Report[13] showed the presence of an injury on AAA's anus, particularly an erytherna at 12 o'clock position. It was concluded that there was a blunt force penetrating trauma to AAA's anus.[14]
During trial, AAA was shown a video on Youtube captioned "Isang binatilyo ginahasa sa xxxxxxxxxxx." Said video contained a news clip from TV5 reporting the subject incident. In the video, Mariano was asked by the reporter why he did such horrendous act, Mariano then admitted committing the crime and reasoned that he was under the influence of dangerous drugs at the time of the incident.[15]
In defense, Mariano denied the accusations against him. He claimed that on the day of the incident, he was with his mother and siblings in their house, the address of which he cannot clearly identify. Surprised, he was arrested the day after on account of charges of rape and theft against him.[16]
The RTC Ruling
In a Joint Decision[17] dated September 3, 2018, the RTC ruled as follows: (a) in Criminal Case No. 17-205-MAL, Mariano was found guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of RA No. 7610, for which he was sentenced to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and to pay AAA the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of the ruling until full payment; and (b) in Criminal Case No. 17-206-MAL, Mariano was found guilty beyond reasonable doubt of theft, defined and penalized under Article 308, in relation to Article 309(6) of the RPC, for which he was sentenced to suffer the penalty of imprisonment for a straight period of four months.[18]
In so ruling, the RTC held that the prosecution has sufficiently proven all the elements of rape by sexual assault. It further noted that AAA narrated in a straightforward and convincing manner how Mariano, through the use of force, threat, and intimidation, committed sexual assault on him by inserting his penis into his mouth and anus.[19] As regards the charge of theft, the RTC likewise found the prosecution evidence to have proven that Mariano committed the said crime through the spontaneous and persuasive testimony of AAA, not to mention the fact that the ownership of the cellphone was established when AAA was able to unlock the same, as corroborated by the testimony of PO2 Dematera, Jr.[20]
Aggrieved, Mariano appealed[21] before the CA.
The CA Ruling
In a Decision[22] dated February 26, 2021, the CA affirmed the RTC ruling.[23]
In denying Mariano's appeal, the CA reiterated the RTC ruling that the elements of rape by sexual assault are present in the instant case.[24] The CA further pointed out that the testimony of AAA was corroborated by the Medico-Legal Report, which confirmed the injury in AAA's anus or the presence of erythema at 12 o'clock position.[25]
Likewise, Mariano's conviction for theft was affirmed by the CA but with further clarification that force and intimidation were employed by Mariano in taking the subject cellphone, thus, Mariano should have been charged with robbery. However, the element of violence against or intimidation was not alleged in the Information in Criminal Case No. 17-206-MAL.[26] Given the rule that an accused cannot be convicted of an offense higher than that with which he was charged in the Information and on which he was tried, Mariano may only be convicted of theft, as aptly held by the RTC.[27]
Hence, this Petition,[28] where Mariano insists that the prosecution was not able to prove his guilt for the crimes charged against him. In its Comment[29] dated August 9, 2023, however, the People of the Philippines, through the Office of the Solicitor General, maintained that the CA correctly affirmed Mariano's conviction for the crimes of lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC.
The Issue Before the Court
The issue for the Court's resolution is whether the CA correctly affirmed the RTC's findings that Mariano is guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC.
The Court's Ruling
The Petition lacks merit.
The essential elements in the prosecution for sexual assault under Article 266-A, paragraph 7 of the RPC are: (1) the accused committed an act of sexual assault by (a) inserting his penis into another person's mouth or anal orifice, or (b) inserting any instrument or object into the genital or anal orifice of another person; and (2) the act was accomplished: (a) through the use of force or intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.[30]
In this case, the prosecution has proven beyond reasonable doubt the presence of all the elements to warrant Mariano's conviction for the offense charged. First, Mariano committed an act of sexual assault against AAA by inserting his penis both into the latter's mouth and anal orifice. Second, such act was accomplished through the use of force and intimidation when Mariano grabbed AAA by his shoulders and neck and threatened him not to make any noise, otherwise, something bad will happen to him. Notably, these elements were established by AAA's candid and straightforward narration of his harrowing experience in the hands of Mariano, to wit:
The blanket denial of Mariano, on the other hand, deserves no evidentiary weight for being negative and self-serving in the absence of clear and convincing evidence substantiating it. Furthermore, this cannot prevail over the positive testimony of AAA.[35]
In People v. Caoili,[36] the Court noted that RA No. 7610 "finds application when the victims of abuse, exploitation or discrimination are children or those 'persons below 18 years of age or those over but are unable to fully take care of themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.'" Considering that the age of AAA was 14 years old at the time of the commission of the crime, as shown by his Certificate of Live Birth,[37] Section 5(b) of RA No. 7610[38] finds application in this case. Concomitantly, the elements thereof are: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. Verily, the prosecution evidence has established all the foregoing elements as pointed out in the preceding disquisitions. As such, the nomenclature of the crime committed in Criminal Case No. 17-205-MAL was properly modified to lascivious conduct under Section 5(b) of RA No. 7610, pursuant to People v. Tulagan.[39]
As regards Mariano's conviction for theft, the Court finds the same to be in accord with law.
To be found guilty of theft, the following elements must be present: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking was done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without violence or intimidation against persons or force upon things.[40]
Here, the CA correctly observed that Mariano employed force and intimidation in taking AAA's cellphone, as reflected in the latter's testimony, to wit:
Withal, the Court finds no reason to deviate from the findings of the RTC, as affirmed by the CA, as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case. In fact, the RTC was in the best position to assess and determine the credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the same.[44] Thus, Mariano's conviction for lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC must be sustained.
As regards the penalties, RA No. 7610 provides that the penalty for lascivious conduct under Section 5(b) of RA No. 7610 is reclusion temporal in its medium period to reclusion perpetua. Applying the Indeterminate Sentence Law (ISL),[45] and further considering the absence of any modifying circumstances, the CA correctly sentenced Mariano to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum. The CA also correctly ordered Mariano to pay AAA the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of the ruling until full payment, as the same is in accordance with prevailing jurisprudence.[46] In addition, the Court imposes the fine of PHP 15,000.00 pursuant to Section 31(f) of RA No. 7610[47] for the rehabilitation of the child victim.[48]
Finally, with respect to the imposable penalty for theft, the CA aptly noted that the prosecution failed to prove the value of the stolen property, thus, the minimum penalty prescribed under paragraph 6 of Article 309 of the RPC shall be imposed against Mariano, i.e., arresto mayor in its minimum and medium periods. Considering that the ISL finds no application to those whose maximum term of imprisonment does not exceed one year, the CA correctly sentenced Mariano to suffer the penalty of imprisonment for a period of four months.
ACCORDINGLY, the Petition is DISMISSED. The Decision dated February 26, 2021 and the Resolution dated March 10, 2022 of the Court of Appeals in CA-G.R. CR No. 42454, which affirmed the Joint Decision dated September 3, 2018 of xxxxxxxxxxx, Regional Trial Court, xxxxxxxxxxx, finding petitioner Felix Mariano y Pilapil guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of Republic Act No. 7610 and theft under Article 308, in relation to Article 309(6) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION. Thus, Felix Mariano y Pilapil is hereby sentenced as follows:
(a) in Criminal Case No. 17-205-MAL, to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and to pay the victim, AAA, the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of this Decision until full payment. He is also ordered to pay a fine in the amount of PHP 15,000.00; and
(b) in Criminal Case No. 17-206-MAL, Felix Mariano y Pilapil to suffer the penalty of imprisonment for a straight period of four months.
SO ORDERED.
Leonen, SAJ. (Chairperson), Lazaro-Javier, M. Lopez, and J. Lopez, JJ., concur.
[1] Rollo, pp. 13-29.
[2] Id. at 32-55. Penned by Associate Justice Walter S. Ong and concurred in by Presiding Justice Remedios A. Salazar-Fernando and Associate Justice Victoria Isabel A. Paredes or the First Division, Court of Appeals, Manila.
[3] Id. at 57-59. Penned by Associate Justice Walter S. Ong and concurred in by Presiding Justice Remedios A. Salazar-Fernando and Associate Justice Victoria Isabel A. Paredes of the Former First Division, Court of Appeals, Manila.
[4] Id. at 78-92. Penned by Presiding Judge Rhoda Magdalene L. Mapile-Osinada of xxxxxxxxxxx, Regional Trial Court, xxxxxxxxxxx City.
[5] R.A. No. 7610 (1992), An Act Providing for Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And For Other Purposes.
[6] Rollo, p. 33.
[7] The identity of the victim, as well as those of her immediate family or household members, and/or the accused, or any information which could establish or compromise the victim's identity shall be withheld pursuant to RA 7610, entitled "An Act Providing For Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes," approved on June 17, 1992; RA 9262, entitled "An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefore, And For Other Purposes," approved on March 8, 2004; and Section 40 or A.M. No. 04-10-11-SC, otherwise known as the "Rule On Violence Against Women And Their Children" (November 15, 2004). See footnote 4 in People v. Cadano, Jr., 729 Phil. 576, 578 (2014) [Per J. Perlas-Bernabe, Second Division], citing People v. Lomaque, 710 Phil. 338, 342 (2013) [Per J. Del Castillo, Second Division]. See also Amended Administrative Circular No. 83-2015, entitled "Protocols and Procedures In The Promulgation, Publication, And Posting On The Websites Of Decisions, Final Resolutions, And Final Orders Using Fictitious Names/Personal Circumstances," dated September 5, 2017.
[8] Rollo, p. 78.
[9] Id.
[10] Id. at 35-36.
[11] Id. at 36.
[12] Id. at 36-37.
[13] Not attached to the rollo.
[14] Rollo, p. 37.
[15] Id.
[16] Id. at 37.
[17] Id. at 78-92.
[18] Id. at 91-92.
[19] Id. at 82.
[20] Id. at 89-90.
[21] See "Brief for the Accused-Appellant;" id. at 61-76.
[22] Id. at 32-55.
[23] Id. at 54.
[24] Id. at 42.
[25] Id. at 46.
[26] Id. at 52.
[27] Id. at 53.
[28] Id. at 13-29.
[29] Id., unpaginated.
[30] People v. XXX, G.R. No. 233867, February 28, 2022 [Per J. Hernando, Second Division], citing People v. Bagsic, 822 Phil. 784, 800 (2017) [Per J. Martires, Third Division].
[31] Rollo, pp. 42-43.
[32] People v. Alicante, 388 Phil. 233 (2000) [Per Curiam, En Banc].
[33] 751 Phil. 793 (2015) [Second Division].
[34] Id. at 805, citing People v. Oliva, 616 Phil. 786, 792 (2009) [Per J. Nachura, Third Division], citing People v. De Guzman, 423 Phil. 313, 331 (2001) [Per Curiam, En Banc].
[35] People v. Anticamara, 666 Phil. 484, 507 (2011) [Per J. Peralta, Second Division].
[36] 815 Phil. 839 (2017) [Per J. Tijam, En Banc].
[37] Rollo, p. 41.
[38] Section 5(b) of RA No. 7610 reads:
Sec. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
....
b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.
[39] 849 Phil. 197 (2019) [Per J. Peralta, En Banc].
[40] Valenzuela v. People, 552 Phil. 381, 397 (2007) [Per J. Tinga, En Banc].
[41] Rollo, p. 51.
[42] Article 293. Who are guilty of robbery. - Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence or intimidation of any person, or using force upon anything shall be guilty of robbery.
[43] Rollo, p. 53, citing United States v. Campo, 23 Phil. 368 (1912) [Per J. Carson] and People v. Manalili, 355 Phil. 652 (1998) [Per J. Panganiban, First Division].
[44] See Cahulogan v. People, 828 Phil. 742, 749 (2018); citations omitted.
[45] Act No. 4103 (1933) "An Act To Provide For An Indeterminate Sentence And Parole For All Persons Convicted Of Certain Crimes By The Courts Of The Philippine Islands; To Create A Board Of Indeterminate Sentence And To Provide Funds Therefor; And For Other Purposes".
[46] See People v. Jugueta, 783 Phil. 806 (2016) [Per C.J. Peralta, En Banc].
[47] Section 31(f) of RA No. 7610 reads:
Section 31. Common Penal Provisions. -
. . . .
(f) A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.
[48] People v. Caoili, 815 Phil. 839 (2017) [Per J. Tijam, En Banc].
This case stemmed from two Informations[6] filed before the RTC, charging Mariano with rape under Article 266-A(2) of the RPC and theft under Article 308 of the RPC, the accusatory portions of which read:
The prosecution alleged that at around 11:00 p.m. on January 29, 2017, 14-year-old AAA was outside their house when he saw Mariano pass by him and proceed to the house of his (Marwin) friend, Jonjie. After leaving Jonjie's house, Mariano approached AAA and forcibly dragged the latter to a dark place by holding him strongly initially by his shoulders, then by his neck. Mariano told AAA not to make any noise, otherwise, something bad will happen to him. Upon reaching the dark place, Mariano put his penis inside AAA's mouth and made a push and pull motion while holding AAA's neck with both hands. When Mariano saw a motorcycle pass near them, he stopped what he was doing. However, when the motorcycle had gone far, Mariano again dragged AAA across the street while repeating his threats. There, Mariano again inserted his penis into AAA's mouth. Appalled by Mariano's acts, AAA begged the latter to stop but his plea fell on deaf ears. Subsequently, Mariano pulled down AAA's shorts and instructed the latter to turn his back on him. Mariano then forcibly inserted his penis into AAA's anus and made push and pull movements, causing a white liquid substance to come out. Mariano immediately inserted his penis into AAA's mouth until all the white liquid substance came out.[10]Criminal Case No. 17-205-MAL
(rape under Article 266-A(2) of the RPC)
That on or about the 29th day of January 2017, in the City of xxxxxxxxxxx, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of force, threat[,] and intimidation, did then and there, willfully, unlawfully[,] and feloniously commit acts of sexual assault [against] one AAA,[7] 14 years old, by putting his penis in[to] the mouth of said AAA and inserting his penis in his anus, against his will and without his consent.
CONTRARY TO LAW.[8]
Criminal Case No. 17-206-MAL
(theft under Article 308 of the RPC)
That on or about the 29th day of January 2017, in the City of xxxxxxxxxxx, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain, did, then and there, willfully, unlawfully[,] and feloniously take, steal[,] and carry away One (1) unit of [cellphone i]Phone 4S worth more or less Php37,000.00 marked as "CED 1-30-17" owned [by] and belonging to AAA, 14 years old, without the latter's knowledge and consent[,] to the damage and prejudice of the same in the aforementioned amount of Php 37,000.00.
CONTRARY TO LAW.[9]
After Mariano sexually abused AAA, the former forcibly took the latter's iPhone 4S. During that time, police officers were patrolling around the area. Hence, when Mariano saw the police officers coming near them, he ran away, bringing with him AAA's cellphone. At once, AAA ran to the police officers and sought help as he reported the incident.[11]
The following day, at around 5:00 p.m., the police officers arrested Mariano in his house upon the positive identification of AAA. Mariano was then asked by Police Officer II Carlito Dematera, Jr. (PO2 Dematera, Jr.) where the cellphone was. Mariano surrendered the item right away, even replying in the affirmative when asked if he stole the cellphone. Upon confiscation of the cellphone, AAA successfully unlocked the same.[12]
On January 31, 2017, a medico-legal examination was conducted on AAA. The Medico-Legal Report[13] showed the presence of an injury on AAA's anus, particularly an erytherna at 12 o'clock position. It was concluded that there was a blunt force penetrating trauma to AAA's anus.[14]
During trial, AAA was shown a video on Youtube captioned "Isang binatilyo ginahasa sa xxxxxxxxxxx." Said video contained a news clip from TV5 reporting the subject incident. In the video, Mariano was asked by the reporter why he did such horrendous act, Mariano then admitted committing the crime and reasoned that he was under the influence of dangerous drugs at the time of the incident.[15]
In defense, Mariano denied the accusations against him. He claimed that on the day of the incident, he was with his mother and siblings in their house, the address of which he cannot clearly identify. Surprised, he was arrested the day after on account of charges of rape and theft against him.[16]
In a Joint Decision[17] dated September 3, 2018, the RTC ruled as follows: (a) in Criminal Case No. 17-205-MAL, Mariano was found guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of RA No. 7610, for which he was sentenced to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and to pay AAA the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of the ruling until full payment; and (b) in Criminal Case No. 17-206-MAL, Mariano was found guilty beyond reasonable doubt of theft, defined and penalized under Article 308, in relation to Article 309(6) of the RPC, for which he was sentenced to suffer the penalty of imprisonment for a straight period of four months.[18]
In so ruling, the RTC held that the prosecution has sufficiently proven all the elements of rape by sexual assault. It further noted that AAA narrated in a straightforward and convincing manner how Mariano, through the use of force, threat, and intimidation, committed sexual assault on him by inserting his penis into his mouth and anus.[19] As regards the charge of theft, the RTC likewise found the prosecution evidence to have proven that Mariano committed the said crime through the spontaneous and persuasive testimony of AAA, not to mention the fact that the ownership of the cellphone was established when AAA was able to unlock the same, as corroborated by the testimony of PO2 Dematera, Jr.[20]
Aggrieved, Mariano appealed[21] before the CA.
In a Decision[22] dated February 26, 2021, the CA affirmed the RTC ruling.[23]
In denying Mariano's appeal, the CA reiterated the RTC ruling that the elements of rape by sexual assault are present in the instant case.[24] The CA further pointed out that the testimony of AAA was corroborated by the Medico-Legal Report, which confirmed the injury in AAA's anus or the presence of erythema at 12 o'clock position.[25]
Likewise, Mariano's conviction for theft was affirmed by the CA but with further clarification that force and intimidation were employed by Mariano in taking the subject cellphone, thus, Mariano should have been charged with robbery. However, the element of violence against or intimidation was not alleged in the Information in Criminal Case No. 17-206-MAL.[26] Given the rule that an accused cannot be convicted of an offense higher than that with which he was charged in the Information and on which he was tried, Mariano may only be convicted of theft, as aptly held by the RTC.[27]
Hence, this Petition,[28] where Mariano insists that the prosecution was not able to prove his guilt for the crimes charged against him. In its Comment[29] dated August 9, 2023, however, the People of the Philippines, through the Office of the Solicitor General, maintained that the CA correctly affirmed Mariano's conviction for the crimes of lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC.
The issue for the Court's resolution is whether the CA correctly affirmed the RTC's findings that Mariano is guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC.
The Petition lacks merit.
The essential elements in the prosecution for sexual assault under Article 266-A, paragraph 7 of the RPC are: (1) the accused committed an act of sexual assault by (a) inserting his penis into another person's mouth or anal orifice, or (b) inserting any instrument or object into the genital or anal orifice of another person; and (2) the act was accomplished: (a) through the use of force or intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.[30]
In this case, the prosecution has proven beyond reasonable doubt the presence of all the elements to warrant Mariano's conviction for the offense charged. First, Mariano committed an act of sexual assault against AAA by inserting his penis both into the latter's mouth and anal orifice. Second, such act was accomplished through the use of force and intimidation when Mariano grabbed AAA by his shoulders and neck and threatened him not to make any noise, otherwise, something bad will happen to him. Notably, these elements were established by AAA's candid and straightforward narration of his harrowing experience in the hands of Mariano, to wit:
This clear, positive, convincing, and consistent testimony of AAA was moreover corroborated by the Medico-Legal Report, which confirmed the presence of injury or erythema in his anus at 12 o'clock position. Nonetheless, even without the said Medico-Legal Report, Mariano can still be convicted on the basis of the lone testimony of AAA, considering that the same was clear and consistent with human nature and the normal course of things.[32] Verily, in Ricalde v. People,[33] the Court, through Associate Justice Marvic M.V.F. Leonen, resolved to give full weight and credit to testimonies of child victims because their "[y]outh and immaturity are generally badges of truth and sincerity."[34] Especially in this case where no ill-motive can be proffered on the part of AAA to fabricate a story as revolting as this, the debilitating effects of which AAA has to endure in his lifetime.
The blanket denial of Mariano, on the other hand, deserves no evidentiary weight for being negative and self-serving in the absence of clear and convincing evidence substantiating it. Furthermore, this cannot prevail over the positive testimony of AAA.[35]
In People v. Caoili,[36] the Court noted that RA No. 7610 "finds application when the victims of abuse, exploitation or discrimination are children or those 'persons below 18 years of age or those over but are unable to fully take care of themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.'" Considering that the age of AAA was 14 years old at the time of the commission of the crime, as shown by his Certificate of Live Birth,[37] Section 5(b) of RA No. 7610[38] finds application in this case. Concomitantly, the elements thereof are: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, whether male or female, is below 18 years of age. Verily, the prosecution evidence has established all the foregoing elements as pointed out in the preceding disquisitions. As such, the nomenclature of the crime committed in Criminal Case No. 17-205-MAL was properly modified to lascivious conduct under Section 5(b) of RA No. 7610, pursuant to People v. Tulagan.[39]
As regards Mariano's conviction for theft, the Court finds the same to be in accord with law.
To be found guilty of theft, the following elements must be present: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking was done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without violence or intimidation against persons or force upon things.[40]
Here, the CA correctly observed that Mariano employed force and intimidation in taking AAA's cellphone, as reflected in the latter's testimony, to wit:
As aptly pointed out by the CA, Mariano would have been liable for robbery as defined under Article 293[42] of the RPC. However, since the element of violence against or the intimidation was not alleged in the Information, Mariano cannot be convicted of robbery in view of the settled rule that an accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the Information filed against him.[43] As such, the CA correctly convicted Mariano of theft.
Withal, the Court finds no reason to deviate from the findings of the RTC, as affirmed by the CA, as there is no indication that it overlooked, misunderstood or misapplied the surrounding facts and circumstances of the case. In fact, the RTC was in the best position to assess and determine the credibility of the witnesses presented by both parties, and hence, due deference should be accorded to the same.[44] Thus, Mariano's conviction for lascivious conduct under Section 5(b) of RA No. 7610 and theft under Article 308, in relation to Article 309(6) of the RPC must be sustained.
As regards the penalties, RA No. 7610 provides that the penalty for lascivious conduct under Section 5(b) of RA No. 7610 is reclusion temporal in its medium period to reclusion perpetua. Applying the Indeterminate Sentence Law (ISL),[45] and further considering the absence of any modifying circumstances, the CA correctly sentenced Mariano to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum. The CA also correctly ordered Mariano to pay AAA the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of the ruling until full payment, as the same is in accordance with prevailing jurisprudence.[46] In addition, the Court imposes the fine of PHP 15,000.00 pursuant to Section 31(f) of RA No. 7610[47] for the rehabilitation of the child victim.[48]
Finally, with respect to the imposable penalty for theft, the CA aptly noted that the prosecution failed to prove the value of the stolen property, thus, the minimum penalty prescribed under paragraph 6 of Article 309 of the RPC shall be imposed against Mariano, i.e., arresto mayor in its minimum and medium periods. Considering that the ISL finds no application to those whose maximum term of imprisonment does not exceed one year, the CA correctly sentenced Mariano to suffer the penalty of imprisonment for a period of four months.
ACCORDINGLY, the Petition is DISMISSED. The Decision dated February 26, 2021 and the Resolution dated March 10, 2022 of the Court of Appeals in CA-G.R. CR No. 42454, which affirmed the Joint Decision dated September 3, 2018 of xxxxxxxxxxx, Regional Trial Court, xxxxxxxxxxx, finding petitioner Felix Mariano y Pilapil guilty beyond reasonable doubt of lascivious conduct under Section 5(b) of Republic Act No. 7610 and theft under Article 308, in relation to Article 309(6) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION. Thus, Felix Mariano y Pilapil is hereby sentenced as follows:
(a) in Criminal Case No. 17-205-MAL, to suffer the penalty of imprisonment for an indeterminate period of 10 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and to pay the victim, AAA, the amounts of PHP 50,000.00 as civil indemnity, PHP 50,000.00 as moral damages, and PHP 50,000.00 as exemplary damages, all with legal interest at the rate of 6% per annum from the date of finality of this Decision until full payment. He is also ordered to pay a fine in the amount of PHP 15,000.00; and
(b) in Criminal Case No. 17-206-MAL, Felix Mariano y Pilapil to suffer the penalty of imprisonment for a straight period of four months.
SO ORDERED.
Leonen, SAJ. (Chairperson), Lazaro-Javier, M. Lopez, and J. Lopez, JJ., concur.
[1] Rollo, pp. 13-29.
[2] Id. at 32-55. Penned by Associate Justice Walter S. Ong and concurred in by Presiding Justice Remedios A. Salazar-Fernando and Associate Justice Victoria Isabel A. Paredes or the First Division, Court of Appeals, Manila.
[3] Id. at 57-59. Penned by Associate Justice Walter S. Ong and concurred in by Presiding Justice Remedios A. Salazar-Fernando and Associate Justice Victoria Isabel A. Paredes of the Former First Division, Court of Appeals, Manila.
[4] Id. at 78-92. Penned by Presiding Judge Rhoda Magdalene L. Mapile-Osinada of xxxxxxxxxxx, Regional Trial Court, xxxxxxxxxxx City.
[5] R.A. No. 7610 (1992), An Act Providing for Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And For Other Purposes.
[6] Rollo, p. 33.
[7] The identity of the victim, as well as those of her immediate family or household members, and/or the accused, or any information which could establish or compromise the victim's identity shall be withheld pursuant to RA 7610, entitled "An Act Providing For Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes," approved on June 17, 1992; RA 9262, entitled "An Act Defining Violence Against Women And Their Children, Providing For Protective Measures For Victims, Prescribing Penalties Therefore, And For Other Purposes," approved on March 8, 2004; and Section 40 or A.M. No. 04-10-11-SC, otherwise known as the "Rule On Violence Against Women And Their Children" (November 15, 2004). See footnote 4 in People v. Cadano, Jr., 729 Phil. 576, 578 (2014) [Per J. Perlas-Bernabe, Second Division], citing People v. Lomaque, 710 Phil. 338, 342 (2013) [Per J. Del Castillo, Second Division]. See also Amended Administrative Circular No. 83-2015, entitled "Protocols and Procedures In The Promulgation, Publication, And Posting On The Websites Of Decisions, Final Resolutions, And Final Orders Using Fictitious Names/Personal Circumstances," dated September 5, 2017.
[8] Rollo, p. 78.
[9] Id.
[10] Id. at 35-36.
[11] Id. at 36.
[12] Id. at 36-37.
[13] Not attached to the rollo.
[14] Rollo, p. 37.
[15] Id.
[16] Id. at 37.
[17] Id. at 78-92.
[18] Id. at 91-92.
[19] Id. at 82.
[20] Id. at 89-90.
[21] See "Brief for the Accused-Appellant;" id. at 61-76.
[22] Id. at 32-55.
[23] Id. at 54.
[24] Id. at 42.
[25] Id. at 46.
[26] Id. at 52.
[27] Id. at 53.
[28] Id. at 13-29.
[29] Id., unpaginated.
[30] People v. XXX, G.R. No. 233867, February 28, 2022 [Per J. Hernando, Second Division], citing People v. Bagsic, 822 Phil. 784, 800 (2017) [Per J. Martires, Third Division].
[31] Rollo, pp. 42-43.
[32] People v. Alicante, 388 Phil. 233 (2000) [Per Curiam, En Banc].
[33] 751 Phil. 793 (2015) [Second Division].
[34] Id. at 805, citing People v. Oliva, 616 Phil. 786, 792 (2009) [Per J. Nachura, Third Division], citing People v. De Guzman, 423 Phil. 313, 331 (2001) [Per Curiam, En Banc].
[35] People v. Anticamara, 666 Phil. 484, 507 (2011) [Per J. Peralta, Second Division].
[36] 815 Phil. 839 (2017) [Per J. Tijam, En Banc].
[37] Rollo, p. 41.
[38] Section 5(b) of RA No. 7610 reads:
Sec. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
....
b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.
[39] 849 Phil. 197 (2019) [Per J. Peralta, En Banc].
[40] Valenzuela v. People, 552 Phil. 381, 397 (2007) [Per J. Tinga, En Banc].
[41] Rollo, p. 51.
[42] Article 293. Who are guilty of robbery. - Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence or intimidation of any person, or using force upon anything shall be guilty of robbery.
[43] Rollo, p. 53, citing United States v. Campo, 23 Phil. 368 (1912) [Per J. Carson] and People v. Manalili, 355 Phil. 652 (1998) [Per J. Panganiban, First Division].
[44] See Cahulogan v. People, 828 Phil. 742, 749 (2018); citations omitted.
[45] Act No. 4103 (1933) "An Act To Provide For An Indeterminate Sentence And Parole For All Persons Convicted Of Certain Crimes By The Courts Of The Philippine Islands; To Create A Board Of Indeterminate Sentence And To Provide Funds Therefor; And For Other Purposes".
[46] See People v. Jugueta, 783 Phil. 806 (2016) [Per C.J. Peralta, En Banc].
[47] Section 31(f) of RA No. 7610 reads:
Section 31. Common Penal Provisions. -
. . . .
(f) A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.
[48] People v. Caoili, 815 Phil. 839 (2017) [Per J. Tijam, En Banc].