402 Phil. 395
On or about the month of December, 1995 in Tagig, Metro Manila, and within the jurisdiction of this Honorable Court, the accused, with lewd designs and by means of force and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with Marlyn Perlas y Roque, thirteen (13) years old, against her will and consent.The antecedent facts as synthesized in the People's Brief are the following:
(Record, p. 1.)
CRIMINAL CASE NO. 110979-H
On or about the month of October 2, 1996 in Tagig, Metro Manila, and within the jurisdiction of this Honorable Court, the accused, with lewd designs and by means of force and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with Marlyn Perlas y Roque, fourteen (14) years old, against her will and consent.
(Record, p. 3.)
The prosecution presented five (5) witnesses, namely: Dr. Tomas Suguitan (TSN, February 18, 1997), a Medico-Legal Officer assigned to the Philippine National Police (PNP) Crime Laboratory in Camp Crame, Quezon City; Lauriano de Guzman (TSN, April 8, 1997), a member of the Barangay Security Force of Lower Bicutan, Tagig; Jurita Olvido (TSN, July 15, 1997), a social worker connected with the Department of Social Welfare and Development (DSWD); Marlyn R. Perlas (TSN, August 12, 1997), the private complainant; and Emelyn R. de los Reyes (TSN, September 17, 1997), sister of Marlyn's mother, Edna.Upon such bases and findings, the trial court, the Honorable Gregory S. Ong, presiding, rendered the judgment of conviction, disposing thusly:
Their testimonies establish the following facts.
Private complainant Marlyn R. Perlas was born on March 1, 1982 to spouses Marlon Perlas and Edna Roque. However, Marlyn's parents have long been separated from each other. In fact, since 1993, her mother started living-in with appellant Ricardo de Guzman, whom Marlyn fondly called "Papa." Together with Marlyn's younger brother and sister, the five (5) of them occupied a house located at Signal Village, Tagig, Metro Manila. (TSN, August 12, 1997, pp. 3-6.)
Sometime in the morning of December 1995, Marlyn, Maria (Marlyn's younger sister) and appellant were all in their house. Since Maria was deeply asleep, appellant took advantage of the situation. Appellant pointed a kitchen knife at Marlyn's neck and thereafter removed Marlyn's shorts and panty. Appellant then took off his shorts and brief and inserted his penis into Marlyn's vagina. Marlyn felt pain. (TSN, August 12, 1997, pp. 6-8.)
The sexual abuse was repeated in the evening of that same day. Appellant ordered Marlyn's brother to go out of the house. Thereafter, appellant threatened Marlyn with the same kitchen knife and raped her. (TSN, August 12, 1997, pp. 8-9.)
When she was being raped by appellant, Marlyn did not shout for help because she was afraid of appellant who was pointing a kitchen knife at her. Also, since appellant threatened to kill all of them, Marlyn did not report the rape incidents to her mother who returned the following day from work. (TSN, August 12, 1997, pp. 9-10.)
Sometime in the morning of October 2, 1996, Marlyn and appellant were the only persons left inside the house. Maria was then playing outside the house, while Marlyn's younger brother had gone to the province. On the other hand, Marlyn's mother had just left the house. Appellant again took advantage of this situation and sexually abused Marlyn. Appellant inserted his penis into Marlyn's vagina. Marlyn did not shout for help because appellant, who was holding a knife, threatened her life. (TSN, August 12, 1997, pp. 10-12.)
Three days later, Marlyn wanted to sleep in the house of her landlady who asked Marlyn if something had happened to her. This prompted Marlyn to tell her about the aforesaid rape incidents committed against her by appellant. (TSN, August 12, 1997, pp. 12-13, 17-18.)
On October 5, 1996, the rape incidents were reported to the Barangay Security Force of Lower Bicutan, Tagig. Acting on the said report, Lauriano de Guzman and Rolando Reyes invited appellant to the barangay hall where appellant was identified by Marlyn as the sexual assailant. Thereafter, appellant was brought to the Tagig police station. (TSN, April 8, 1997, pp. 3-4, Exhibit B.)
On October 6, 1996, Marlyn was examined by Dr. Noel Martinez, a Medico-Legal Officer assigned at the PNP Crime Laboratory, who found out that Marlyn's hymen had deep healed laceration at 6:00 o'clock position, which laceration, according to Dr. Tomas Suguitan, also of the same office, could have been caused by the insertion of a blunt object like a penis. Since the injury could be healed in about 3 to 5 days, Dr. Suguitan declared that the rape could have been committed on October 2, 1996. (TSN, February 18, 1997, pp. 4-8, Exhibit A.)
On October 7, 1996, the assistance of Jurita Olvido, a DSWD social worker, was sought by the Tagig police authorities in connection with the sexual assaults on Marlyn. Jurita found out that Marlyn had low intelligence quotient, while Marlyn's mother, Edna, was illiterate. This prompted Jurita to assist the two in preparing sworn statements before the police authorities. (TSN, July 15, 1997, pp. 3-6; Exhibits C and D.)
That Marlyn had poor mental development was corroborated by Emelyn R. de los Reyes, the sister of Marlyn's mother. According to Emelyn, Marlyn acted like a 7 or 8-year old girl even if Marlyn was already 15 years old. (TSN, September 17, 1997, pp. 4-11.)
(Rollo, pp. 74-78.)
WHEREFORE, judgment is hereby rendered finding accused RICARDO de GUZMAN GUILTY beyond reasonable doubt of two (2) counts of the crime of rape in criminal Cases Nos. 110978-H and 110979-H, and , for each case, sentencing said accused to: a) suffer the death penalty; b) suffer the accessory penalties consequent thereto; c) pay the private offended party the sum of Fifty Thousand Pesos (P50,000.00) by way of civil indemnity, or a total of One Hundred Thousand Pesos (P100,000.00) for both cases; and d) pay the costs.In the automatic review of this case, accused-appellant assigns the lone error that:
(Record, pp. 257-258.)
THE TRIAL COURT GRAVELY ERRED IN IMPOSING TWO (2) DEATH PENALTIES UPON ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO ALLEGE IN THE TWO (2) INFORMATIONS THAT ACCUSED-APPELLANT IS THE COMMON-LAW SPOUSE OF THE VICTIM'S PARENT.After reviewing the evidence on record, we find no reversible error committed by the trial court in convicting the accused-appellant on two counts of the crime of rape committed in December 1995 and on October 2, 1996. Upon consideration of the testimony of Marlyn Perlas, the victim in this case, who categorically and positively stated that accused-appellant threatened her with a kitchen knife and sexually abused her on the abovestated dates inside their house, the Court finds no basis to depart from the well-settled rule that with regard to the assessment of the credibility of witnesses, the findings of the trial court bear great weight upon the appellate courts.
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.There is no indication in the two Informations that the crime charged is punishable by death under the foregoing law. Republic Act No. 7610 covers child prostitution, which is not the case here. Besides, Republic Act No. 7610 itself does not impose death for rape but rather refers the matter to Article 335 of the Revised Penal Code as the applicable law.
Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances.
The crime of rape shall be punished by reclusión perpetua.
- By using force or intimidation;
- When the woman is deprived of reason or otherwise unconscious; and
- When the woman is under twelve years of age or is demented.
x x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
- 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.
The modality of the rape above stated, as well as the other six modes introduced by Republic Act No. 7659, partakes of the nature of a qualifying circumstance under the Revised Penal Code since it increases the penalty for rape by one degree. It cannot be considered as equivalent to an aggravating circumstance because aggravating circumstances affect only the period of the penalty and do not increase the penalty to a higher degree. Also, under the rules of criminal procedure, a qualifying circumstance to be considered as such must be so alleged in the information, which is not required of aggravating circumstances.The factual recitals in the two Informations as to how the crime of rape was committed in the case at bar, failed to specifically allege the qualifying circumstances which would elevate rape to a heinous crime, warranting the imposition of the death penalty. The two Informations are completely bereft of any mention whatsoever of the fact that accused-appellant is the common-law spouse of the victim's mother.
Pursuant to the above-mentioned constitutional right of the accused and the extant jurisprudence on the subject, we have held that the death penalty may be imposed only if the information has alleged and the evidence has proven both the age of the victim and her relationship to the offender. In People vs. Perez, the Court ruled that because "the circumstance that [the victim] was less than eighteen years of age at the time of the rape was never, in any manner, stated in the Information," the accused could be convicted only of simple rape and sentenced to reclusión perpetua, not death. We said that it was the concurrence of the minority of the victim and her relationship with the offender that would have qualified the rape as heinous and thus justified the imposition of the supreme penalty.Again, in People vs. Lacaba (318 SCRA 301 ), it was emphasized that:
In the instant case, the age of the victim was not alleged in the Information filed against appellant. Because not all the elements of qualified rape were alleged in the Information, the death sentence cannot be meted out to him.
Under Article 335 of the Revised Penal Code, as amended by Republic Act 7659, the penalty for rape when committed with the use of a deadly weapon is reclusión perpetua to death. The absence of any aggravating circumstance in the commission thereof, would justify even without any mitigating circumstance, the imposition of the lesser penalty of reclusión perpetua (People vs. Quiñanola, et al., G.R. No. 126148, May 5, 1999). More so, because the use of deadly weapon, although established during the trial was not expressly alleged in the complaint or indictment.In the case at bar, the two Informations charged accused-appellant with the crime of simple rape, penalized under Article 335 of the Revised Penal Code with the indivisible penalty of reclusión perpetua.