[ G.R. No. 249149, December 02, 2020 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE CABALES Y WEBBER @ "BASIL", ACCUSED-APPELLANT.
CONCURRING AND DISSENTING OPINION
CAGUIOA, J.:
I concur with the ponencia insofar as it affirms the guilt of the accused-appellant Jose Cabales y Webber @ "Basil" (Cabales) for the crime he was charged with.
I disagree, however, that the nomenclature of the crime he was convicted of should be "Lascivious Conduct under Section 5(b), Republic Act No. 7610," and with the imposition of the penalty of "ten (10) years, two (2) months, and twenty-one (21) days of prision mayor, as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum."1 Cabales should instead be convicted of the crime of Sexual Assault under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353.
I reiterate and maintain my position in People v. Tulagan2 that R.A. No. 7610 and the RPC, as amended by R.A. No. 8353, "have different spheres of application; they exist to complement each other such that there would be no gaps in our criminal laws. They were not meant to operate simultaneously in each and every case of sexual abuse committed against minors."3 Section 5(b) of R.A. No. 7610 applies only to the specific and limited instances where the child-victim is "exploited in prostitution or subjected to other sexual abuse" (EPSOSA).
In other words, for an act to be considered under the purview of Section 5(b), R.A. No. 7610, so as to trigger the higher penalty provided therein, "the following essential elements need to be proved: (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."4 Hence, it is not enough that the victim be under 18 years of age. The element of the victim being EPSOSA - a separate and distinct element - must first be both alleged and proved before a conviction under Section 5(b), R.A. No. 7610 may be reached.
Specifically, in order to impose the higher penalty provided in Section 5(b) as compared to Article 266-B of the RPC, as amended by R.A. No. 8353, it must be alleged and proved that the child - (1) for money, profit, or any other consideration or (2) due to the coercion or influence of any adult, syndicate or group - indulges in sexual intercourse or lascivious conduct.5
In this case, the Information only alleged that the victim was a 15-year old minor, but it did not allege that she was EPSOSA. Likewise, there was no proof or evidence presented during the trial that she indulged in sexual intercourse or lascivious conduct either for a consideration, or due to the coercion or influence of any adult.
Thus, while I agree that Cabales's guilt was proven beyond reasonable doubt, it is my view that his conviction should be for Sexual Assault under paragraph 2 of Article 266-A of the RPC, as amended by R.A. No. 8353.
Accordingly, the penalty that ought to be imposed on him should be within the range of prision correccional, as minimum and prision mayor, as maximum instead of the one imposed by the ponencia, which is within the range of prision mayor to reclusion temporal.
Footnotes
1 Ponencia, p. 11. Penalty imposed under Republic Act No. 7610, Section 5(b) for Lascivious Conduct after the application of the Indeterminate Sentence Law.
2 G.R. No. 227363, March 12, 2019.
3 J. Caguioa, Concurring and Dissenting Opinion in People v. Tulagan, G.R. No. 227363, March 12, 2019, p. 33; emphasis, italics and underscoring omitted.
4 Id. at 21, citing People v. Abello, 601 Phil. 373, 392 (2009).
5 Id. at 28.
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