G.R. No. 127904




EN BANC G.R. No. 127904 December 5, 2002 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ESTEBAN VICTOR y PENIS, accused-appellant. D E C I S I O N CALLEJO, SR., J.: This is an automatic review of the Decision1 of Branch 95 of the Regional Trial Court, Quezon City, finding accused-appellant Esteban Victor y Penis guilty beyond reasonable doubt of qualified rape in Criminal Case No. Q-96-67322 and sentencing him to suffer the penalty of death and to pay private complainant Marilyn Corpuz Villanueva the amount of ₱50,000.00 for moral damages; and of acts of lasciviousness in Criminal Case No. Q-96-67323 and sentencing him to suffer an indeterminate penalty of six (6) months and one (1) day of prision correccional in its minimum period, as minimum, to four (4) years and two (2) months of prision correccional in its medium period, as maximum, and to pay the offended party the amount of ₱120,000.00 for moral damages. The criminal complaint for qualified rape filed against accused-appellant, docketed as Criminal Case No. Q-96-67322 alleges that: The undersigned accuses ESTEBAN VICTOR y PENIS, STEP-FATHER, of the crime of Rape, committed as follows: That sometime in May 1996 in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously undress said Marilyn Villanueva, a minor, 13 years old, step-daughter; and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.2 The criminal complaint for acts of lasciviousness filed against accused-appellant, docketed as Criminal Case No. Q-96-67323 alleges that: The undersigned accuses ESTEBAN VICTOR y PENIS, STEP-FATHER, of the crime of ACTS OF LASCIVIOUSNESS, committed as follows: That on or about the 5th day of August 1996 in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the undersigned complainant, a minor, 13 years of age, step-daughter; by then and there mashing (sic) her private parts, with lewd design and against her will. CONTRARY TO LAW.3 At the arraignment, accused-appellant with the assistance of a counsel de parte, entered a plea of not guilty. The cases having been consolidated, joint trial thereupon ensued. The prosecution presented two (2) witnesses: private complainant Marilyn Villanueva and Dr. Rosaline O. Cosidon, the Medico-Legal Officer of the PNP Central Crime Laboratory of Quezon City. Marilyn testified that she was 13 years old at the time she was raped by accused-appellant. She further stated that accused-appellant was jobless; worse, he was usually drunk. He eked a living as a scavenger. He and her mother, Julieta Corpuz, lived together as husband and wife in a house constructed on a lot located at Phase IV, Urban Poor, Payatas, Quezon City owned by Pinong dela Cruz. The couple had no children of their own. However, she and her sister Rachel, being Julieta's daughters by Rodrigo Villanueva, from whom Julieta was separated, and Jovet, accused-appellant's son by another woman, lived with accused-appellant and Julieta. The latter oftentimes maltreated her. Although Marilyn considered accused-appellant as her stepfather, she called him "Kuya." In May 1996, while Julieta was out of the house, accused-appellant, armed with a knife, gained entry into Marilyn's room,4 pointed his knife at her and warned her not to shout or run; otherwise, he would run after her. Petrified, Marilyn just stayed put. Accused-appellant then took off Marilyn's clothes and immediately removed his clothes. He then pinned Marilyn to the floor and placed himself on top of her. Accused-appellant held her legs, spread them apart, inserted his penis into Marilyn's genitalia and proceeded to make the pumping motions of the sexual act.5 He kissed Marilyn on her lips and mashed her breasts as he ravished her. Marilyn felt an excruciating pain on her genitalia and pushed accused-appellant back, but to no avail.6 She begged for mercy and said "Kuya huwag po, masama yan" (please don't do it, it's bad) but her entreaties fell on deaf ears. Satiated, accused-appellant dismounted but warned Marilyn not to tell a word about the incident or else he would kill her.7 Afraid that accused-appellant would make good his threats, not to mention his invariable presence in the house since he was a boozer and jobless, Marilyn kept her silence. Marilyn's ordeal, however, was not the last. Accused-appellant continued to torment her day by day by persistently kissing her and touching her private parts. All she could do was cry and suffer in silence. To avoid further encounters with accused-appellant, Marilyn resorted to frequenting the back of their house and staying thereat for hours just sitting.8 Marilyn later mustered enough courage to tell her mother that she had been sexually abused and subjected to lascivious acts by accused-appellant. Instead of helping her daughter, Julieta simply told Marilyn to avoid her Kuya Esteban.9 Marilyn was flabbergasted. On August 5, 1996, at about 11:00 a.m., accused-appellant and Marilyn were alone in the house. Accused-appellant again touched Marilyn's private parts, kissed her on the lips, smashed her breasts, and touched her thighs and legs.10 Marilyn recoiled with anguish as accused-appellant abused her. Unable to bear accused-appellant's satyric acts, Marilyn ran away from home and went to her sister Raquel, who was then working as housemaid of a certain Pinong dela Cruz.11 Marilyn related to him her traumatic ordeals at the hands of accused-appellant. Dela Cruz took pity on Marilyn and accompanied her to the police station where she reported accused-appellant's sexual assault and lascivious acts on her.12 It turned out that accused-appellant himself abused not only Marilyn but Raquel as well. On August 7, 1996, Marilyn, assisted by Remedios Jasmin and Hope Bernardes of the Department of Social Welfare and Development (DSWD), executed an Affidavit-Complaint13 before SPO1 Nido Gevero of the Central Police District Command, Quezon City, narrating her ordeals at the hands of accused-appellant. She likewise declared in said affidavit-complaint that she was 13 years old. Dr. Rosaline O. Cosidon, the Medico-Legal Officer of the Central Crime Laboratory of the Northern Police District Command in Quezon City, testified that on August 6, 1996, she conducted a genitalia examination on Marilyn and that she prepared and signed Medico-Legal Report No. 1178-96 containing her findings on said examination, thus: FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with dark brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft. GENITAL: There is absence of growth of pubic hair. Labia majora are full, convex and gaping with the pinkish brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy-type hymen with deep, healed laceration at 3 o'clock position and shallow healed laceration at 5 and 7 o'clock positions. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency. Subject is in non-virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. Vaginal and peri-urethral smears are negative for gram-negative diplococci and spermatozoa. She further testified that the deep healed lacerations in the hymenal area could have been caused by a blunt instrument such as an erect hard penis. The prosecution and accused-appellant stipulated in open court that Marilyn was 13 years old when the offenses were committed and on the basis of said stipulation, the Court dispensed with the presentation by the prosecution of her birth certificate. Accused-appellant testified in his behalf. He denied having raped Marilyn, and by way of avoidance, testified that he and Julieta Corpuz were married; that she had three daughters by another man, namely Marife, 21 years old, Raquel, 17 years old and Marilyn, 13 years old; and that in May 1996, and even before that, Marilyn and her other sisters were staying in the house of their aunt in Valenzuela, Metro Manila because of their studies.14 He averred that there was no occasion in the past that Marilyn ever visited him and Julieta in their house at Payatas as Marilyn was so busy attending to her summer classes as a Grade 1 pupil at the public school in Valenzuela.15 He could not have abused Marilyn because he considered and treated her as a stepdaughter.16 He insisted that he loved her only as a stepdaughter and even gave financial support for her education.17 He also claimed that his relationship with his stepdaughters, especially Marilyn, was good.18 He denied having subjected Marilyn to acts of lasciviousness and averred that he could not have perpetrated the same because Marilyn was residing with her sister Raquel, who was employed in Quezon City.19 As to why Marilyn filed the charges against him, accused-appellant explained that this was Marilyn's way of getting back at him for scolding her in the past for arriving home very late at night.20 He further testified that Marilyn was no longer a virgin because she was raped in 1995 by a certain Mon Oliva, a third cousin of his mother.21 Accused-appellant undertook to adduce in evidence his marriage contract with Julieta Corpuz but never did. In due course, the trial court rendered a joint decision22 finding accused-appellant guilty as charged. The dispositive portion of the decision reads: WHEREFORE, judgment is rendered in the following: 1. In Crim. Case No. Q-96-67322, the Court finds the accused, Esteban Victor y Penis, GUILTY beyond reasonable doubt of the crime of rape, defined in and penalized by Article 335 of the Revised Penal Code, as amended, and hereby sentences the said accused to suffer the penalty of DEATH. The accused is further ordered to indemnify Marilyn Villanueva the amount of P50,000.00, as moral damages; and 2. In Crim. Case No. Q-96-67323, the Court finds the accused, Esteban Victor y Penis, GUILTY beyond reasonable doubt of the crime of acts of lasciviousness, defined in and penalized by Article 336 of the Revised Penal Code and hereby sentences the said accused to suffer the indeterminate penalty of from six (6) months and one (1) day of prision correccional minimum, as the minimum penalty to four (4) years and two (2) months of prision correccional medium, as the maximum penalty. The accused is further ordered to pay Marilyn Villanueva the amount of P20,000.00, as moral damages. The accused is ordered to pay the costs. SO ORDERED.23 The trial court imposed the death penalty on accused-appellant for the crime of rape in its qualified form on its finding that he was the stepfather of Marilyn, or the common-law husband of her mother, Julieta Corpuz. In his Brief, accused-appellant contends that: Re: Criminal Case No. Q-96-67322 I THE TRIAL COURT ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH DESPITE THE FACT THAT THE RELATIONSHIP OF THE ACCUSED AND THE NATURAL MOTHER OF PRIVATE COMPLAINANT WAS NOT PROVED WITH CERTAINTY.24 Accused-appellant avers that the trial court erred in imposing on him the death penalty on its finding that he was the stepfather of private complainant. He insists that the evidence on record shows that he and Julieta Corpuz, the natural mother of private complainant were merely live-in partners; they were not legally married. Accused-appellant points out that even the trial court found that he was merely the common-law husband of Julieta Corpuz. Even if he were the common-law husband of Julieta Corpuz, the death penalty could not have been lawfully imposed on him because what was alleged in the criminal complaint for rape as a special qualifying circumstance was that he was the stepfather of Marilyn Villanueva; however, the prosecution proved that he was merely the common-law husband of Julieta. Accused-appellant cites the decision of the Court in People vs. Juan Manggasin 25 to fortify his contention. The Solicitor General, however, insists that the evidence on record shows that accused-appellant was the stepfather of private complainant. The Solicitor General points out that not only did private complainant declare that accused-appellant was her stepfather when she testified but accused-appellant also admitted in his testimony that he and Julieta Corpuz were married. Finally, the Solicitor General contends that accused-appellant cannot find solace in the decision of the Court in People vs. Juan Manggasin26 because the Court found and declared in said case that accused-appellant and the mother of the offended party were not legally married. Article 335 of the Revised Penal Code, as amended by RA 7659, provides that the death penalty shall be imposed if the crime of rape is committed when the victim is under eighteen (18) years of age and the offender is a stepfather or the common-law spouse of the parent of the victim. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a 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. xxx The minority of the victim and her relationship to the offender is a special qualifying circumstance in the crime of rape and may raise the penalty for rape to the supreme penalty of death. Such circumstance must be alleged in the criminal complaint or information and proved conclusively and indubitably as the crime itself; otherwise, the crime shall be considered simple rape warranting the imposition of the lower penalty of reclusion perpetua.27 In the case at bar, the criminal complaint in Criminal Case No. Q-86-67322 alleged the special qualifying circumstance of minority concurring with stepfather-stepdaughter relationship of accused-appellant and private complainant. It bears stressing that a stepfather-stepdaughter relationship presupposes a legitimate relationship - a valid marriage between the mother of private complainant and accused-appellant.28 And the best evidence to prove the marriage between accused-appellant and Julieta Corpuz, the mother of private complainant, is their marriage contract.29 However, the prosecution inexplicably failed to adduce in evidence the marriage contract of accused-appellant and Julieta on its evidence-in-chief. The prosecution relied solely on the admission of accused-appellant during cross-examination that he was married to Julieta: PROS: (to witness) Q Esteban Victor, you claimed that you were married to one Julieta Corpuz, am I right? A Yes, sir. Q And you will agree with me that because you are married, you also have a marriage contract? A Yes, sir. Q Do you have that marriage contract with you now? A It's with my wife, sir. Q Can you bring it before this Honorable Court during next hearing? A I will tell her.30 Oddly, the prosecution agreed that the case be submitted for the decision of the court instead of moving for the continuance of the hearing to enable accused-appellant to present to the court a copy of the said contract of marriage between him and Julieta. This resulted in the prosecution's failure to offer in evidence the said marriage contract. The declaration of accused-appellant that he was married to Julieta, even if made in the course of the proceedings in the trial court, is not conclusive proof that the two are legally married.31 Said declaration did not dispense with the burden of the prosecution to adduce in evidence the marriage contract of accused-appellant and Julieta. Neither may the prosecution rely on the disputable presumption that when a man and a woman live together as husband and wife, they are presumed to be married. Relationship is a qualifying circumstance in rape and must not only be alleged. It must also be proved beyond reasonable doubt as the crime itself.32 The evidence on record shows that accused-appellant used a knife, a deadly weapon in intimidating Marilyn to succumb to his bestial desire. Under Article 335 of the Revised Penal Code, as amended, the use of a bladed weapon to force or intimidate into agreeing to sexual intercourse is a qualifying circumstance requiring the imposition of the penalty of reclusion perpetua to death.33 However, said circumstance must be alleged in the criminal complaint for rape and proved with certainty. Even if such is proved but not alleged in the Information, the same cannot serve as basis for the imposition of the penalty of reclusion perpetua to death.34 In the present case, although the prosecution established that accused-appellant used a knife to force Marilyn into submitting to his carnal desires, said circumstance was not alleged in the Information for rape. Hence, the appropriate penalty should be reclusion perpetua. Further, although the prosecution proved that accused-appellant used a deadly weapon in raping the private complainant, a qualifying circumstance in the commission of said crime, the trial court did not award exemplary damages. In People vs. Danilo Catubig,35 we held that an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the context of Article 2230 of the New Civil Code, even if the information or criminal complaint has not alleged said aggravating circumstance as required by Section 8, Rule 110 of the Revised Rules of Criminal Procedure. The offended party is still entitled to exemplary damages even if the information or criminal complaint was filed before the effectivity of said Rule. We held that: The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the private offended party that have become vested prior to the effectivity of said rules. Thus, in the case at bar, although relationship has not been alleged in the information, the offense having been committed, however, prior to the effectivity of the new rules, the civil liability already incurred by appellant remains unaffected thereby.36 We also note that the trial court awarded private complainant the amount of ₱50,000.00 for moral damages but did not award any amount to private complainant for civil indemnity ex delicto. We have consistently held that the offended party in simple rape is entitled to civil indemnity ex delicto from the offender in the amount of ₱50,000.00.37 Re: Criminal Case No. Q-96-67323 Accused-appellant avers in his Brief that - II THE TRIAL COURT ERRED IN CONVICTING ACCUSED-ACCUSED-APPELLANT OF ACTS OF LASCIVIOUSNESS INSTEAD OF THE LESSER OFFENSE OF UNJUST VEXATION. Accused-appellant argues that although he touched the private parts of private complainant and grabbed her breasts, held her thighs and legs and kissed her, the said acts were not lewd and do not constitute the felony of acts of lasciviousness. The Solicitor General points out that indeed the acts of accused-appellant in the morning of August 5, 1996 constitute acts of lasciviousness since the indispensable element of lewdness is present: Moreover, it is not necessary that intimidation be irresistible. It being sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party (Criminal Law, Revised Penal Code, Padilla, Vol. 4, 1990 Edition, p. 610). In this case, the moral intimidation posed by appellant as a stepfather was more than sufficient to intimidate Marilyn and force her to submit to his lewd designs.38 The felony of acts of lasciviousness is defined and penalized by Article 336 of the Revised Penal Code, as amended, thus: ART. 336. Acts of lasciviousness.- Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. The elements of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done under any of the following circumstances: (a) by using force or intimidation; (b) when the offended woman is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve (12) years of age.39 In People vs. Tiburcio Balbar,40 we held that what constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amendable to the provisions of article 439 (now article 336) of the Penal Code. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case.1âwphi1 It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another case to say where the line of demarcation lies between such conduct and the amorous advances of an ardent lover. (U.S. v. Gomez, 30 Phil. 22, 25) The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. xxx. In the instant case, accused-appellant raped Marilyn at the point of a knife in May, 1996, and threatened to kill her if she divulged the incident to anyone. Accused-appellant had been subjecting Marilyn to lascivious acts, the same culminating on August 5, 1996 when he again indulged in his lecherous predatory acts and touched her private parts, grabbed her breasts, held her thighs and legs and then kissed her. Accused-appellant and Marilyn were alone by themselves in the house. All she could do was cry as she was still petrified by accused-appellant's threats on her life in May 1996 if she revealed that she had been subjected to sexual assault at the hands of accused-appellant. There can be no doubt that accused-appellant was propelled by lewd designs when on August 5, 1996, he touched her private part, mashed her breasts, touched her thighs and legs and kissed her.41 The Solicitor General avers that the penalty imposed by the trial court on accused-appellant for the felony of acts of lasciviousness, namely, six (6) months and one (1) day of prision correccional in its minimum period, as minimum, to four (4) years, two (2) months of prision correccional in its medium period, as maximum, is not correct. We agree with the Solicitor General. The penalty for the felony of acts of lasciviousness is prision correccional in its full range. Reducing the penalty by one degree to determine the minimum of the indeterminate penalty, such penalty is arresto mayor which has range of one (1) month and one (1) day to six (6) months. The minimum of the indeterminate penalty shall be taken from the full range of arresto mayor. Absent any modifying circumstances attendant to the crime, the maximum of the indeterminate penalty shall be taken from the medium period of prision correccional. Accordingly, accused-appellant is hereby meted an indeterminate penalty of five (5) months and ten (10) days of arresto mayor in its medium period, as minimum, to four (4) years and two (2) months of prision correccional in its medium period, as maximum. IN THE LIGHT OF ALL THE FOREGOING, the Decision of the trial court is hereby AFFIRMED with Modifications: 1. In Criminal Case No. Q-96-67322, accused-appellant is hereby found GUILTY beyond reasonable doubt of the felony of simple rape defined and penalized by Article 335 of the Revised Penal Code, as amended by RA 7659 and is hereby meted the penalty of reclusion perpetua. Accused-appellant is ordered to pay to Marilyn Villanueva the amount of P50,000.00, by way of civil indemnity ex delicto, the amount of P50,000.00 by way of moral damages, in keeping with current jurisprudence and the amount of ₱25,000.00 by way of exemplary damages; 2. In Criminal Case No. Q-96-67233, accused-appellant is hereby found GUILTY beyond reasonable doubt of the felony of acts of lasciviousness defined and penalized in Article 366 of the Revised Penal Code, as amended, and is hereby sentenced to an indeterminate penalty of five (5) months and ten (10) days of arresto mayor in its medium period, as minimum, to four (4) years and two (2) months of prision correccional, in its medium period, as maximum. He is hereby ORDERED to pay Marilyn Villanueva the amount of P25,000.00 by way of moral damages; and costs. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona and Carpio-Morales, JJ., concur. Puno, J., on official leave. Azcuna, J., on leave. Footnotes 1 Penned by Judge Diosdado M. Peralta, now Associate Justice, Sandiganbayan. 2 Rollo, p. 4. 3 Id., at 6. 4 TSN, October 9, 1996, p. 9. 5 Id., at 7. 6 Id., at 8. 7 Exhibit "C," Q & A No. 6. 8 TSN, October 9, 1996, p. 12. 9 Id., at 13. 10 Id., at 12-13. 11 Id., at 13; Exhibit "C," Q & A No. 8. 12 Id., at 14. 13 Exhibit "C." 14 TSN, November 8, 1996, p. 5. 15 Id., at 5-6. 16 Id., at 12. 17 Id., at 6 & 12. 18 Id., at 6. 19 Id., at 7. 20 Id. 21 Id., at 8. 22 Penned by Judge Diosdado Madarang Peralta. 23 Records, Crim. Cases Nos. Q-96-67322 & Q-96-67233, p. 52. 24 Rollo, p. 68. 25 306 SCRA 228 (1999). 26 Vide Note 23. 27 People vs. dela Pena, G.R. Nos. 138358-59, November 19, 2001; People vs. Alemania, G.R. No. 146521-22, November 12, 2002. 28 People vs. Villaraza, 339 SCRA 666 (2000). 29 People vs. Silvano, 309 SCRA 362 (1999). 30 TSN, November 8, 1996, pp. 63-64. 31 People vs. Yonto, G.R. No. 148917-18, November 21, 2002. 32 People vs. Padilla, G.R. No. 137642, March 30, 2002; People vs. Ireneo Alconza, G.R. No. 135452-53, October 5, 2001. 33 Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death; People vs. Escante, G.R. No. 140218-23, February 3, 2002. 34 People vs. Benigno Villanueva, G.R. No. 137341, October 28, 2002; People vs. Rolando Alfanta, 320 SCRA 357 (1999). 35 G.R. No. 137842, August 23, 2001, p. 19. 36 Vide Note 35, pp. 12-13. 37 People vs. Emmanuel Aaron, G.R. Nos. 136300-02, September 24, 2002; People vs. Nexiel Ortega @ Rex Ortega, G.R. No. 137824, September 17, 2002; People vs. Benigno Elona y Bautista, G.R. Nos. 146352-56, September 10, 2002; People vs. Victor Balili y Libot, G.R. No. 125908, September 5, 2002; People vs. Archibald Patosa y Lastimado, G.R. No. 137759, September 3, 2002; People vs. Ramil Sajolga y Omera, G.R. No. 146684, August 14, 2002; People vs. Eduardo T. Ocampo, G.R. Nos. 145303-04, August 7, 2002; People vs. Eloy Miclat, Jr. y Sanchez, G.R. No. 137024, August 7, 2002; and People vs. Baltazar Cesista, G.R. Nos. 131589-90, August 6, 2002. 38 Rollo, p. 102. 39 REYES, REVISED PENAL CODE, 1981 ed., Vol. II, pp. 855-856. 40 21 SCRA 1119 (1967). 41 People vs. Marcelino Collado, et al., 60 Phil. 610. The Lawphil Project - Arellano Law Foundation