429 Phil. 180
KAPUNAN, J.:
Crim. Case No. RTC ‘97-168:On April 4, 1997, accused-appellant Marcelo Esuela, duly assisted by counsel de oficio, entered a plea of not guilty in both cases. Thereafter, joint trial ensued.x x x
That on or about 12:00 o’clock midnight sometime in the year 1995 at Barangay Tamban, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, with grave abuse of confidence, being the stepfather of Maricel A. Hilboy, with lewd designs and by means of force and intimidation have sexual intercourse with the said private complainant, a 13-year old minor, against her will and without her consent as evidenced by a medical certificate marked as Annex “A” hereof, to the damage and prejudice of said Maricel A. Hilboy.
ACTS CONTRARY TO LAW.
Naga City, for Calabanga, Camarines Sur, January 22, 1997.
Crim. Case No. RTC’97-169:x x x
That on or about 12:00 o’clock midnight of December 14, 1996 at Zone 6, Barangay Tamban, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, with grave abuse of confidence, being the stepfather of Maricel A. Hilboy, with lewd designs and by means of force and intimidation have sexual intercourse with the said private complainant, a 13 year old minor, against her will and without her consent as evidenced by a medical certificate marked as “Annex A” hereof, to the damage and prejudice of said Maricel A. Hilboy.
ACTS CONTRARY TO LAW.
Naga City, Philippines, January 22, 1997.[1]
WHEREFORE, in view of the foregoing, the prosecution having proved the guilt of the accused beyond reasonable doubt in both cases, accused Marcelo Esuela, is found guilty of the offense of rape. Applying the above-quoted law, the rape cases having been committed in the year 1995 and December 14, 1996, accused Marcelo Esuela is hereby sentenced to suffer the following penalties:The decision is now before this court for its automatic review.
- In Crim. Case No. RTC '97-168, he is hereby sentenced the penalty of death and to indemnify the private complainant Maricel Hilboy the amount of P75,000.00;
- In Crim. Case No. RTC '97-169, he is hereby sentenced the penalty of death and to indemnify the private complainant Maricel Hilboy the amount of P75,000.00. The indemnification of P50,000.00 has been increased by the Supreme Court in People vs. Victor, G.R. No. 127903; July 9, 1998 to P75,000.00;
- He is further ordered to pay the cost.
SO ORDERED.[30]
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON ACCUSED-APPELLANT DESPITE THE PROSECUTION'S FAILURE TO ALLEGE IN THE TWO (2) INFORMATIONS THAT ACCUSED-APPELLANT IS THE COMMON-LAW SPOUSE OF THE VICTIM'S MOTHER.[31]Clearly, accused-appellant does not question the decision of the trial court insofar as his guilt is concerned. Nevertheless, this Court still painstakingly reviewed the records of the cases to determine whether the guilt of accused-appellant has been proved beyond reasonable doubt. Unfortunately for accused-appellant, the Court could not find any reason to reverse his conviction.
The testimony of Maricel was candid and straightforward, interrupted only by her tears as she recalled her unpleasant experience at the hands of accused-appellant. As such, it must be given full faith and credit by this Court.
x x x Q You said that something happened to you. Now, I call your attention whether you recall where were you? On December 14, 1996?
A Yes, sir.Q Where were you?
A I was inside the house sir.Q What were you doing at around 12:00 midnight?
A I was sleeping sir.PROS. CU: Q Were you awakened?ATTY. TAYER: Objection your Honor. Leading.COURT: Sustained. Reform.PROS. CU: Q What happened if anything while you were sleeping?
A Yes, sir.ATTY. TAYER: We would like to strike out the answer because it was not responsive to the question.COURT: Strike that out.
(The question was repeated to the witness by the interpreter.)WITNESS: A I was awakened to find out that I was already naked without my panty and my dress.Q So when you were awakened noticing that your panty was already been undressed, what if anything transpired next?
A He was already on top of me sir.Q You said that somebody was on top of you, who was that person if you recognize him?ATTY. TAYER: I think that the question is not proper your Honor. The translation is not someone but he.Witness: A Marcelo Esuela.PROS. CU: Kindly point at Marcelo Esuela if he is around?INTERPRETER: The witness is pointing at a person who when asked his named answered Marcelo Esuela.ATTY. TAYER: We would like to manifest your Honor that as I observe the witness cannot pinpoint straight or directly to the accused. She cannot face the accused.COURT: Proceed.PROS. CU: Q So you recognized the person who was on top of you to be Marcelo Esuela the accused here. So what if anything transpired after that?
A He inserted his penis inside my vagina sir.Q What if anything did you feel when he inserted his penis to your vagina?
A It was painful sir.Q Where if at all was his hands placed while he inserted his penis into your private organ?
A He was covering my mouth sir so that I could not shout.Q Maricel Hilboy, while Marcelo Esuela had already inserted his penis to your private organ, what if anything did he do next?ATTY. TAYER: We would like to manifest your Honor that the witness can hardly answer the question.COURT: Make it of record.WITNESS: A He was kissing my lips sir.PROS. CU: Q So for how long do you think had he inserted his penis into your organ?A I could no longer remember sir.Q So what transpired next when he was kissing you Maricel Hilboy?ATTY. TAYER: Objection, your Honor. The witness already say (sic) that nothing already happen (sic).COURT: There was no testimony on that. She said she could not recall how long the penis of the alleged accused was inside her vagina, but not what happened next. There was no question on that. The witness may answer.
A He was holding my hands sir so that I could not move.Q What transpired next after that?
A He warned me that I should not tell my mother because he will cause some physical injuries on me (babadolan).COURT: Agreed on the translation of babadolan?ATTY. TAYER: May we request that the word "babadolan" be placed.PROS. CU: Q So, what if anything did you feel when you were warned that when you report (sic) the incident you will be harmed by Marcelo Esuela?
A I got scared.Q So what transpired after that when he warned you not to reveal the incident to anybody?WITNESS: A After that sir he dismount (sic) on top of me and left me.PROS. CU: Q Where did Marcelo Esuela go after he dismounted from on top of you?
A He went to the place where he was sleeping.Q So what happened to you after he went to the place where he resumed to sleep?
A I kept on crying sir.Q Did you report this incident to your mother?
A No, sir.Q Why did you not report it to your mother?A Because sir of what he warned me. He threatened me that he is going to hurt me if I report the incident to my mother.[33]xxx As regards the first rape incident, Maricel declared:PROS. CU: Q Tell us about that incident Marcel Hilboy, that incident that happened in 1995.
A What happened to me in 1995 is the same of what happened in 1996.Q That is right Maricel Hilboy, but we wish to know what exactly happened to you?ATTY. TAYER: At this juncture, we would like to manifest. The witness had difficulty in answering the question. The question had to be explained by the Honorable Court as well as the prosecutor.WITNESS: A I was raped sir in 1995 but I could no longer remember some of the incidents.PROS. CU: Q You said some of the incidents you have already forgotten. Which or what part of that incident which you have still a recollection?ATTY. TAYER: Since the witness is still thinking, I would like to manifest that the answer she had given a while ago it took time before she can answer the question.WITNESS: A I could remember sir that he kept on kissing me.PROS. CU: Q What else did he do? What else do you remember aside from being kissed by Marcelo Esuela?
A I also remember that he inserted his penis into my vagina.Q Please identify the person who inserted his penis into your vagina and which you said he was repeatedly kissing you?A Marcelo Esuela.[34]
The death penalty is imposed when the “victim is under eighteen years of age and the offender is x x x the common law spouse of the parent of the victim. The victim is the daughter of appellants’ common-law spouse. Ordinarily, the case would have thus meant the imposition of the mandatory death penalty. Quite fortunately for appellant, however, he would be spared this extreme punishment. The relationship between appellant and his victim - the victim is the daughter of appellant’s common-law spouse by the latter’s previous relationship with another man - is a qualifying circumstance that has not been properly alleged in the information which erroneously referred to the victim as being, instead, the “step-daughter” of appellant. A step-daughter is a daughter of one’s spouse by a previous marriage or the daughter of one of the spouses by a former marriage. This Court has successively ruled that the circumstances under the amendatory provisions of Section 11 of Republic Act 7659 the attendance of any which mandates the single indivisible penalty of death, instead of the standard penalty of reclusion perpetua to death prescribed in Article 335 of the Revised Penal Code, are in the nature of qualifying circumstances. Unlike a generic aggravating circumstance which may be proved even if not alleged, a qualifying aggravating cannot be proved as such unless alleged in the information although it may be proved as a generic aggravating circumstance if so included among those enumerated in the Code. Obviously, the technical flaw committed by the prosecution in this instance is a matter that cannot be ignored, and it constrains the Court to reduce the penalty of death imposed by the trial court to that of reclusion perpetua.[40]Accordingly, accused-appellant must be sentenced to the lesser penalty of reclusion perpetua.