G.R. No. 247348

G.R. No. 247348, November 16, 2021,
♦ Decision, J-Lopez, [J]
♦ Separate Concurring and Dissenting Opinion, Leonen, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion, Zalameda, [J]
♦ Dissenting Opinion, Gaerlan, [J]

CHRISTIAN CADAJAS Y CABIAS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Revised Rules of Court assailing the Decision2 dated September 17, 2018 and Resolution3 dated May 9, 2019 rendered by the Court of Appeals (CA) in CA-G.R. CR No. 40298, which affirmed with modification the August 7, 2017 Joint Decision4 of the Regional Trial Court of Valenzuela City, Branch 270 (RTC) in Criminal Case Nos. 215-V-17 and 216-V-17, finding Christian Cadajas y Cabias (petitioner) guilty of violating Section 4(c)(2) of Republic Act (R.A.) No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775.

Petitioner, who was then 24 years old, met the victim, AAA,5 who was only 14 years old, in the canteen where he works. Their relationship started when the younger sibling of AAA told petitioner that AAA had a crush on him. Petitioner tried to evade AAA, but the latter started to stalk him. Later, AAA sent petitioner a request in his Facebook Messenger, which he accepted. The petitioner and AAA would then exchange messages on Facebook Messenger and after some time, petitioner courted AAA for two weeks, until they became sweethearts on April 2, 2016.6

Sometime in June 2016, BBB, the mother of AAA, learned of their relationship.7 She discovered the relationship because AAA would borrow her cellphone to access the latter's Facebook account.8 Her mother was thus able to read their messages whenever AAA would forget to log out her account. BBB disapproved of their relationship because AAA was still too young.9 However, petitioner and AAA ignored her admonishment.

Sometime in October 2016, BBB was disheartened when she read that petitioner was sexually luring her daughter to meet with him in a motel. She confronted petitioner and told him to stay away because AAA was still a minor.10

At around 5:30 in the morning of November 18, 2016, BBB was shocked when she read the conversation between petitioner and AAA. She found that petitioner was coaxing her daughter to send him photos of the latter's breast and vagina. AAA relented and sent petitioner the photos he was asking. When AAA learned that her mother read their conversation, she rushed to a computer shop to delete her messages. BBB, however, was able to force her to open petitioner's Facebook messenger account to get a copy of their conversation.11

On the part of the petitioner, he admitted sending AAA the messages "oo ready ako sa ganyan" and "sige hubad." He, however, denied having sent AAA, photos of his private part. On November 17, 2016, AAA asked petitioner to delete their messages from his account. He even told her "bakit kasi hindi ka pa nagtitino, hayan tuloy nakita ng mama mo." On the same day, petitioner broke up with AAA because her mother did not like him.12

Petitioner later learned from his co-workers that two (2) criminal cases were filed against him.13 He was charged for violation of Section 10(a) of R.A. No. 7610 and for child pornography as defined and penalized under Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. The two (2) informations that were filed against petitioner on December 27, 2016, read as follows:

The undersigned Associate Prosecutor Attorney II accuses CHRISTIAN CADAJAS of "Violation of Section 10(a) of R.A. No. 7610" committed as follows:

That on or about November 16, 2016 in Valenzuela City and within the jurisdiction of the Honorable Court, the above-named accused, acting with lewd design, and abuse of minority, did, then and there, willfully, unlawfully and feloniously coerced. [AAA] (DOB: February 10, 2002) (POB: Valenzuela City), 14 years old, a minor, to send pictures of her breasts and vagina through Facebook Messenger, which circumstances debased, degraded and demeaned the intrinsic worth and dignity of the child as a human being, thereby endangering her youth, normal growth and development.

After trial, the RTC acquitted petitioner of the charge for violation of Section 10(a) of R.A. No. 7610, but found him guilty beyond reasonable doubt for violation of Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. As such, petitioner was sentenced to reclusion temporal and to pay a fine of P1,000,000.00.17

According to the RTC, petitioner was aware that AAA was still a minor when he obstinately prodded the latter to send him photos of her private parts. This is an explicit sexual activity, a lascivious conduct, which the minor victim, AAA, could not have done were it not for the persistent inducement of the petitioner.18 Moreover, petitioner's violation of R.A. No. 9775 is a malum prohibitum.19 As such, his claim that he was in a relationship with AAA finds no relevance.

On the other hand, the RTC dismissed the charge against petitioner for violation of Section 10(a) of R.A. No. 7610 holding that AAA is a city lass who was no longer innocent of the ways of the world. She herself attested that she was not affected by what happened. As such, the RTC ruled that the protective mantle of R.A. No. 7610 is wanting.20 Thus, the RTC disposed the case as follows:

On appeal, the CA affirmed the RTC's judgment. The CA held that the minority of AAA was both established and was even admitted by the petitioner.22 Furthermore, petitioner's conversation with AAA showed that he induced her to send him photos of her private parts.23 These facts clearly evince that petitioner committed child pornography as defined and penalized under Section 4(c)(2) of R.A. No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. The CA did not give credence to the sweetheart defense that was raised by petitioner as the violation committed by petitioner was a malum prohibitum.24 As regards the penalty, the CA modified the same and sentenced petitioner to suffer the penalty of imprisonment for 14 years, eight months and one day, as minimum, to 18 years and three months, as maximum. The fine imposed was retained as it was within the range prescribed by law.25 Thus, the CA disposed as follows:

Petitioner filed a Motion for Reconsideration, which the CA denied in its Resolution27 dated May 9, 2019.

Whether the CA gravely erred in not finding that the evidence presented by the prosecution are inadmissible for violating petitioner's right to privacy.

Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 despite the fact that the alleged act complained of does not constitute an offense penalized under the said statute.

Whether the CA gravely erred in the interpretation of the unlawful and punishable acts under Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775.

Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 despite the failure of the prosecution to prove his guilt beyond reasonable doubt.

Upon a careful review of the records of this case, the Court finds the petition to be without merit.

One of the arguments raised by petitioner before this Court concerns the admissibility of the evidence presented by the prosecution, which was taken from his Facebook messenger account. He claims that the photos presented in evidence during the trial of the case were taken from his Facebook messenger account. According to him, this amounted to a violation of his right to privacy, and therefore, any evidence obtained in violation thereof amounts to a fruit of the poisonous tree.

The right to privacy is defined as "the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities." It is the right of an individual "to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned." Simply put, the right to privacy is "the right to be let alone."29 In his Separate Concurring Opinion, Associate Justice Marvic Mario Victor F. Leonen expounded on the concept of privacy, as it has developed throughout the digital age, thus:

While the Internet has engendered innovation and growth, it has also engendered new types of disruption. A noted expert employs an "evolutionary metaphor" as he asserts:

Under the 1987 Constitution, the right to privacy is expressly recognized under Article III, Sec. 3 thereof, which reads:

SECTION 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

While the above provision highlights the importance of the right to privacy and its consequent effect on the rules on admissibility of evidence, one must not lose sight of the fact that the Bill of Rights was intended to protect private individuals against government intrusions. Hence, its provisions are not applicable between and amongst private individuals. As explained in People v. Marti:39

While the case of Zulueta v. Court of Appeals41 (Zulueta) may appear to carve out an exception to the abovementioned rule by recognizing the rule on inadmissibility of evidence between spouses when one obtains evidence in violation of his/her spouse's right to privacy, such a pronouncement is a mere obiter dictum that cannot be considered as a binding precedent. This is because the petition brought to the Court in Zulueta simply asked for the return of the documents seized by the wife and thus, pertained to the ownership of the documents therein. Moreover, documents were declared inadmissible because of the injunction order issued by the trial court and not on account of Art. III, Sec. 3 of the Constitution. At any rate, violation of the right to privacy between individuals is properly governed by the provisions of the Civil Code, the Data Privacy Act (DPA),42 and other pertinent laws, while its admissibility shall be governed by the rules on relevance, materiality, authentication of documents, and the exclusionary rules under the Rules on Evidence.

In this case, the photographs and conversations in the Facebook Messenger account that were obtained and used as evidence against petitioner, which he considers as fruit of the poisonous tree, were not obtained through the efforts of the police officers or any agent of the State. Rather, these were obtained by a private individual. Indeed, the rule governing the admissibility of an evidence under Article III of the Constitution must affect only those pieces of evidence obtained by the State through its agents. It is these individuals who can flex government muscles and use government resources for a possible abuse. However, where private individuals are involved, for which their relationship is governed by the New Civil Code, the admissibility of an evidence cannot be determined by the provisions of the Bill of Rights.

Here, the pieces of evidence presented by the prosecution were properly authenticated when AAA identified them in open court. As further pointed out by Associate Justice Rodil V. Zalameda during the deliberations of this case, the DPA allows the processing of data and sensitive personal information where it relates to the determination of criminal liability of a data subject,43 such as a violation of R.A. No. 10175 in relation to R.A. No. 9775 and when necessary for the protection of lawful rights and interests of persons in court proceedings,44 as in this case where the communications and photos sought to be excluded were submitted in evidence to establish AAA's legal claims before the prosecutor's office and the courts.

Be that as it may, the act of AAA cannot be said to have violated petitioner's right to privacy. The test in ascertaining whether there is a violation of the right to privacy has been explained in the case of Spouses Hing v. Choachuy, Sr.45 as follows:

Here, petitioner's expectation of privacy emanates from the fact that his Facebook Messenger account is password protected, such that no one can access the same except himself. Petitioner never asserted that his Facebook Messenger account was hacked or the photos were taken from his account through unauthorized means. Rather, the photos were obtained from his account because AAA, to whom he gave his password, had access to it. Considering that he voluntarily gave his password to AAA, he, in effect, has authorized AAA to access the same. He did not even take steps to exclude AAA from gaining access to his account. Having been given authority to access his Facebook Messenger account, petitioner's reasonable expectation of privacy, in so far as AAA is concerned, had been limited. Thus, there is no violation of privacy to speak of.

While the messages and photos were taken from the Facebook Messenger of petitioner because AAA was forced by BBB to do so, such does not deviate from the fact that petitioner allowed another person to access his account. When he gave his Facebook Messenger password to AAA, he made its contents available to AAA, and the latter would then have the latitude to show to other persons what she could access, whether she be forced to do so or not. The availability of accessing these photos limited the scope of his right to privacy, especially that these became essential in pursuing AAA's claims to protect her rights.

In any case, it bears pointing out that petitioner failed to raise his objection to the admissibility of the photos during the proceedings in the RTC. Basic is the rule that in order to exclude evidence, the objection to admissibility of evidence must be made at the proper time, and the grounds therefore be specified. Objection to evidence must be made at the time it is formally offered. In case of documentary evidence, offer is made after all the witnesses of the party making the offer have testified, specifying the purpose for which the evidence is being offered. It is only at this time, and not at any other, that objection to the documentary evidence may be made. When a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. This is true even if by its nature the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time.47

As a complimentary principle, it is well-settled that no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is barred by estoppel.48

By failing to timely raise his objection to the admissibility of the photos, petitioner is deemed to have already waived the same. Thus, the photos taken from his Facebook Messenger account are admissible in evidence.

Petitioner was charged for violating Section 4(c)(2) of R.A. No. 1017549 in relation to Sections 4(a) and 3(b) and (c)(5) of R.A. No. 9775,50 which reads as follows:

From the foregoing, one can be convicted for committing child pornography upon proof of the following: (1) victim is a child; (2) victim was induced or coerced to perform in the creation or production of any form of child pornography; and (3) child pornography was performed through visual, audio or written combination thereof by electronic, mechanical, digital, optical, magnetic or any other means. This Court finds that the prosecution was able to prove these facts by proof beyond reasonable doubt.

The members of the Technical Working Group for the Pre-Bicameral Conference Committee on the Disagreeing Provisions of House Bill No. 6440 and Senate Bill No. 2317 (Anti-Child Pornography Act of 2009) explained the intent in defining "child" under the statute as follows:

Here, it was uncontroverted that AAA was only 14 years old at the time of the incident. This was established from the copy of her Certificate of Live Birth53 that was presented in evidence. Moreover, petitioner was aware of this fact. It was undisputed that BBB confronted petitioner and told him to stay away because her daughter was still a minor.

It is likewise clear from the records of this case that petitioner induced AAA to send him photos of her private parts through Facebook Messenger. This is evident from their conversation, which the CA quoted as follows:

It is evident from the above-quoted conversation that petitioner induced AAA to engage in the lascivious exhibition of her breasts and vagina through Facebook Messenger. Notably, it was petitioner who was the one giving specific orders to AAA. He even asked AAA to send to him nude photos of her and for the latter to further spread her legs near the camera, so that petitioner can see her vagina. In her testimony, AAA further explained that it was because of the continuous prodding of petitioner, that forced her to send her nude photos to the latter, thus:

Further, while the conversation in the Facebook Messenger appears to show that AAA was already undressed while she was conversing with petitioner, it should be pointed out that they were merely exchanging messages on a mobile application. It is probable that AAA was merely bluffing to maintain petitioner's interest. In her testimony, AAA explained that she was not even serious when she sent some of her messages, thus:

Likewise, when AAA said "Nakahubad na," the same cannot be said to be voluntary on her part as it was preceded by an order from petitioner to take her clothes off. Thus, it was clear from the wordings of the messages that petitioner induced AAA to send him photos of her private parts. Without petitioner's inducement, she would not have been compelled to actually undress and send petitioner, photos of her private parts.

Thus, contrary to petitioner's contention, his act of inducing AAA to send photos of her breasts and vagina constitutes child pornography and explicit sexual activity under Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. While there was no showing that petitioner intended to sell AAA's photos to other people, this did not exonerate him from liability under the said provision. During the Pre-Bicameral Conference Committee meeting that led to the enactment of R.A. No. 9775 the members of the Technical Working Group made a distinction between the act of merely possessing child pornography materials from the act of making a profit out of it, to wit:

It can be gleaned from the lengthy discussion of the members of the Technical Working Group that the authors of this statute intended to penalize even the mere possession, for personal use or enjoyment, of child pornography. The law, as enacted, considers possession with intent to sell, distribute, or publish58 to be distinct and separate from mere possession.59 If proven, a stiffer penalty would be imposed on those who were found to have intended to distribute or profit from child pornography. Thus, the foregoing shows the intention of the legislature to include as much violation for acts committed that would further spread the proliferation of pornography in the country, including possession thereof. Necessarily, as those who merely possess child pornographic materials are also punished by law, then R.A. No. 9775 could not be said to have limited its application only to those who are engaged in the business of child pornography.

It also bears emphasis that petitioner obtained the child pornographic materials by inducing AAA to send him photos of the latter's private parts. He did not come into possession of these photos because it was sent by another person. Rather, he came into possession of AAA's photos because of inducing AAA to exhibit her private parts to him. As the inducement to send photos of AAA's private parts was committed with the use of a mobile phone through Facebook Messenger, petitioner's act also falls within the purview of Section 4(c)(2) of R.A. No. 10175, which penalizes child pornography through the use of a computer system. A mobile phone is considered as a computer system under Section 3(g)60 of R.A. No. 10175.

On another matter, petitioner's heavy reliance on the sweetheart theory is misplaced. Invoking this defense would depend on the circumstances of each case. Jurisprudence explained that the said theory applies in felonies that were committed against or without the consent of the victim. This theory operates on the premise that the violation committed was consensual. Hence, the party invoking this theory bears the burden of proving that said party and the victim were lovers and that the latter consented to the commission of the act.61

In the recent case of Bangayan v. People,62 the sweetheart theory was given serious consideration because the accused and the alleged victim were able to show that the alleged rape incident that happened between them was consensual, and a product of love. As noted by the court in that case, the accused and the alleged victim had two children and had lived together even after the filing of the rape charges.

As compared with the instant case, there was insufficiency of evidence to prove the application of the sweetheart theory. Lovers, when they are passionate with their feelings, engage in physical contact, as manifestations of their love towards one another. As they express their feelings towards one another, they express themselves and not just lust over the photos of private parts of their partners. While there may be instances of expressions of love in a virtual space, the same would usually be predicated by endearing words and not just advances of lust, as in this case.

Here, AAA was led to believe that she was in a relationship with petitioner. It was undisputed that it was AAA who relentlessly pursued the petitioner. Still, it can be gleaned from the facts that petitioner, who must be basking in her attention, took advantage of her innocence and vulnerability. The fact that AAA had three previous boyfriends should not even be taken against her for it is the rule under Section 54(a)(1), Rule 130 of the Revised Rules of Court that "the character of the offended party may be proved if it tends to establish in any degree the probability or improbability of the offense charged." It has been held in rape case, that this argument may be raised only to show that there was consent in a rape case. This does not apply when the woman's consent is immaterial such as in statutory rape or rape with violence or intimidation.63 It must be added that consent would also be immaterial if the victim was persuaded, coerced or induced to do a particular act, as in this case. In his Separate Concurring Opinion, Justice Leonen made reference to his Dissenting Opinion in Bangayan v. People,64 ultimately concluding that the sweetheart defense should not be allowed in cases involving child pornography, thus:

It should be pointed out that AAA was only 14 years old at the time of the incident while petitioner was 24 years old. Such huge age disparity placed petitioner in a stronger position over AAA, which enabled him to wield his will on the latter.66 Judicial notice must also be taken of the fact that minors, especially those who are between the ages of 12 and 18 years, are curious about their sexuality. They are that stage in their lives when they are dealing with their raging hormones. Nonetheless, this should not be taken to mean that they are now capable of giving rational consent to engage in any sexual activity. In a society where birth control and sex education are taboo subjects, these sexually curious teenagers are left to their own devices. Unfortunately, the only source of information available to them are those from the internet or from their friends, who are also not knowledgeable on the subject. For this reason, minors have been acknowledged to be vulnerable to the cajolery and deception of adults, such as in this case.67

Unless and until these minors are given proper guidance and/or taught about sex and its consequences, and until it be shown that their actions arise from their feelings of love towards their partner, they cannot be considered to be truly capable of giving an educated and rational consent to engage in any form of sexual activity. Thus, to minimize the risk of harm to minors from the detrimental consequences of their attempts at adult sexual behavior, the State, as parens patriae, is under the obligation to intervene and protect them from sexual predators like petitioner in this case.68 This must be so if We are to be true to the constitutionally enshrined State policy to promote the physical, moral, spiritual, intellectual and social well-being of the youth.69 This is also in harmony with the declared policy of the State in R.A. No. 9775, which provides:

Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, it is the best interests of the child that shall be the primary consideration.

Article 1 of Presidential Decree No. 603, otherwise known as, "The Child And Youth Welfare Code" is likewise clear and unequivocal that every effort should be exerted by the State to promote the welfare of children and enhance their opportunities for a useful and happy life.

This Court, however, concurs with petitioner's argument, and as pointed out by Associate Justice Alfredo Benjamin S. Caguioa in his Dissenting Opinion,71 that a violation of Section 4(c)(2) of R.A. No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 falls under the class of offenses known as mala in se, where criminal intent must be proven by proof beyond reasonable doubt. The difference between the concept of mala in se and malum prohibitum were succinctly explained as follows:

In the ratification speech on Anti-Child Pornography Act of 2009, the principal author explained the need for the promulgation of this law, to wit:

Even during the pre-bicameral conference committee hearing, the Technical Working Group had a lengthy discussion on the title of the statute to emphasize the depravity of the acts being penalized, to wit:

From the foregoing, it is decisively clear that the crime of child pornography as defined and penalized under R.A. No. 9775 should be classified as a crime mala in se. As parens patriae, this act of grooming minors for sexual abuse should not be tolerated. We should not be complicit in reinforcing this belief upon the minors that sex with children is acceptable and thereby fuel a pedophile's fantasies prior to committing sexual abuse, which clearly happened in the instant case. Contrary to the appreciation of evidence of the other members of this Court, the circumstances of this case showed the intent of petitioner to abuse AAA and engage in acts of child pornography by inducing the latter to exhibit her private parts to him. Petitioner, being the one with mental maturity, should have known that it was not just legally, but inherently wrong for AAA, a minor, to show her private parts, particularly, through a mobile device. If indeed, petitioner loved AAA, he should have protected her dignity, being a minor. However, as the exchanges of petitioner and AAA would show, it was through petitioner's prodding that led to AAA's act of exhibiting her private parts. Thus, this Court concurs with the findings of the courts a quo that the prosecution was able to establish beyond reasonable doubt that petitioner induced or coerced the minor victim to perform in the creation of child pornography and that the same was done through a computer system.

All told, the courts a quo did not err in finding petitioner guilty beyond reasonable doubt for violation of Section 4(c)(2) of R.A. No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775.

As regards the proper penalty to be imposed, Sections 4 and 875 of R.A. No. 10175 both explicitly provide that the proper penalty to be imposed for child pornography committed through a computer system should be one degree higher than that provided for in R.A. No. 9775. Under Section 15(b)76 of R.A. No. 9775, the penalty to be imposed is reclusion temporal in its maximum period and a fine of not less than P1,000,000.00 but not more than P2,000,000.00. The rationale for this rule was succinctly explained in the case of Disini Jr. v. The Secretary of Justice,77 to wit:

One degree higher than the penalty of reclusion temporal is the indivisible penalty of reclusion perpetua. Accordingly, the penalty imposed by the CA should be modified to reclusion perpetua as it is in accordance with the provisions and intent of R.A. No. 10175.

Finally, the Court finds no compelling reason to modify the fine imposed by the courts a quo as it is within the allowable range imposed by law.