Criminal Law 2

Pp v. Tulagan
G.R. No. 227363
March 12, 2019

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SALVADOR TULAGAN, accused-appellant.

FACTS:

In a Joint Decision dated February 10, 2014 of the Regional Trial Court (RTC)
of San Carlos City in Criminal Case Nos. SCC-6210 and SCC-6211, the accused-
appellant Salvador Tulagan was found to be guilty beyond reasonable doubt of the
crimes of sexual assault and statutory rape as defined and penalized under Article
266-A, paragraphs 2 and 1(d) of the Revised Penal Code (RPC), respectively, in
relation to Article 266-B.

In Criminal Case No. SCC-6210, the victim AAA, nine (9) years old, testified
that sometime in the month of September 2011 she was peeling corn with her cousin
when the above-named accused had approached her, proceeded to spread her legs,
and inserted his finger into her private part, against her will and consent. Which is
contrary to Article 266-A, par. 2 of the Revised Penal Code in relation to R.A. 7610.

In Criminal Case No. SCC-6211, AAA, likewise, testified that at around 11:00
A.M. of October 2011, while she was playing with her cousin in front of Tulagan's
house, he brought her to his house and told her to keep quiet. He told her to lie down
on the floor and removed her short pants and panties. He also undressed himself,
kissed AAA's cheeks, and inserted his penis into her vagina, against her will and
consent. Which is contrary to Article 266-A, par. 1(d) of the Revised Penal Code in
relation to R.A. 7610.

Upon arraignment, Tulagan pleaded not guilty to the crimes charged. He

claimed that he did not know AAA well but admitted that he lived barely five (5)
meters away from AAA's grandmother's house where she lived. The accused,
likewise, claimed that before the alleged incidents occurred, his mother had a
misunderstanding with AAA's grandmother, who later on started spreading rumors
that he raped her granddaughter.

After trial, the RTC found that the prosecution successfully discharged the
burden of proof in two offenses of rape against AAA. The trial court relied on the
credible and positive declaration of the victim as against the alibi and denial of
Tulagan. He was found GUILTY beyond reasonable doubt [of] the crime of rape
defined and penalized under Article 266-A, paragraph 1 (d), in relation to R.A. 7610
in Criminal Case No. SCC-6211 and is hereby sentenced to suffer the penalty of
reclusion perpetua and to indemnify the victim in the amount of fifty thousand
(Php50,000.00) pesos; moral damages in the amount of fifty thousand (Php
50,000.00) pesos, and to pay the cost of the suit. Likewise, he was found GUILTY
beyond reasonable doubt in Criminal Case No. SCC-6210 for the crime of rape
defined and penalized under Article 266-A, paragraph 2 and he is hereby sentenced
to suffer an indeterminate penalty of six (6) years of prision correccional, as
minimum, to twelve (12) years of prision mayor, as maximum, and to indemnify the
victim in the amount of thirty thousand (Php30,000.00) pesos; and moral damages in
the amount of twenty thousand (Php20,000.00) pesos, and to pay the cost of suit.

Upon appeal, the CA affirmed with modification Tulagan's conviction of

sexual assault and statutory rape. (1.) In Criminal Case No. SCC-6210 (Rape by
Sexual Assault), appellant is sentenced to an indeterminate penalty of 12 years of
reclusion temporal, as minimum, to 15 years of reclusion temporal, as maximum.
The award of moral damages is increased to P30,000.00; and P30,000.00 as
exemplary damages, are likewise granted. (2.) In Criminal Case No. SCC-6211
(Statutory Rape), the awards of civil indemnity and moral damages are increased to
P100,000.00 each. Exemplary damages in the amount of P100,000.00, too, are
granted.

ISSUE:

Whether or not the appellate court erred in giving weight and credence to the
inconsistent testimony of AAA and in sustaining his conviction despite the
prosecution's failure to prove his guilt beyond reasonable doubt.
RULING:

No, the court held that the instant appeal has no merit and that the
modification of the nomenclature of the crime, the penalty imposed, and the
damages awarded in Criminal Case No. SCC-6210 for sexual assault, and a
reduction of the damages awarded in Criminal Case No. SCC-6211 for statutory
rape, are in order. In Criminal Case No. SCC-6210 for sexual assault, both the RTC
and the CA found AAA's testimony to be credible, straightforward and unwavering
when she testified that Tulagan forcibly inserted his finger in her vagina. In Criminal
Case No. SCC-6211 for statutory rape, both the RTC and the CA also found that the
elements thereof were present, to wit: (1) accused had carnal knowledge of the
victim, and (2) said act was accomplished when the offended party is under twelve
(12) years of age. Indubitably, the courts a quo found that the prosecution was able
to prove beyond reasonable doubt Tulagan's guilt for the crime of rape. We find no
reason to deviate from said findings and conclusions of the courts a quo.

According to the Jurisprudence a witness' testimony containing

inconsistencies or discrepancies does not, by such fact alone, diminish the credibility
of such testimony. In fact, the variance in minor details has the net effect of
bolstering instead of diminishing the witness' credibility because they discount the
possibility of a rehearsed testimony. Instead, what remains paramount is the witness'
consistency in relating the principal elements of the crime and the positive and
categorical identification of the accused as the perpetrator of the same. AAA was still
able to narrate all the details of the sexual assault she suffered in Tulagan's hands.
AAA's account of her ordeal being straightforward and candid and corroborated by
the medical findings of the examining physician, as well as her positive identification
of Tulagan as the perpetrator of the crime, are, thus, sufficient to support a
conviction of rape.

The court also rejected Tulagan's defense of denial. Being a negative

defense, the defense of denial, if not substantiated by clear and convincing
evidence, as in the instant case, deserves no weight in law and cannot be given
greater evidentiary value than the testimony of credible witnesses, like AAA, who
testified on affirmative matters. Since AAA testified in a categorical and consistent
manner without any ill motive, her positive identification of Tulagan as the sexual
offender must prevail over his defenses of denial and alibi.

How did the Supreme Court reconcile the provisions on Acts of

Lasciviousness, Rape and Sexual Assault under the Revised Penal Code
(RPC), as amended by Republic Act (R.A.) No. 8353 vis-a-vis Sexual
Intercourse and Lascivious Conduct under Section 5(b) of R.A. No. 7610?

The Supreme Court considered the development of the crime of sexual

assault from a mere "crime against chastity" in the form of acts of lasciviousness to a
"crime against persons" akin to rape, as well as the rulings in Dimakuta v. People
(771 Phil. 641) (2015) and People v. Caoili G.R. No. 196848, August 8, 2017 (835
SCRA 107). They held that if the acts constituting sexual assault are committed
against a victim under 12 years of age or is demented, the nomenclature of the
offense should now be "Sexual Assault under paragraph 2, Article 266-A of the
RPC in relation to Section 5(b) of R.A. No. 7610" and no longer "Acts of
Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No.
7610," because sexual assault as a form of acts of lasciviousness is no longer
covered by Article 336 but by Article 266-A(2) of the RPC, as amended by R.A. No.
8353. Nevertheless, the imposable penalty is still reclusion temporal in its medium
period, and not prision mayor.

Whereas if the victim is 12 years old and under 18 years old, or 18 years old
and above under special circumstances, the nomenclature of the crime should be
"Lascivious Conduct under Section 5(b) of R.A. No. 7610" with the imposable
penalty of reclusion temporal in its medium period to reclusion perpetua, but it should
not make any reference to the provisions of the RPC. It is only when the victim of the
sexual assault is 18 years old and above, and not demented, that the crime should
be called as "Sexual Assault under paragraph 2, Article 266-A of the RPC" with
the imposable penalty of prision mayor.

VICTIM NOMENCLATURE OF IMPOSED PENALTY

THE OFFENSE
Under 12 years old or Sexual Assault under reclusion temporal in its
demented paragraph 2, Art. 266-Aof medium period
the RPC in relation to
 Section 5 (b) R.A. No.
7610
12 years old and under 18 Lascivious Conduct under reclusion temporal in its
years old, or 18 years old Section 5(b) of R.A. No. medium period to
and above under special 7610 reclusion perpetua
circumstances
18 years old and above, Sexual Assault under prision mayor
and not demented paragraph 2, Article 266-A
of the RPC

Sexual intercourse with a victim who is under 12 years old or is

demented is statutory rape

Under Section 5(b) of R.A. No. 7610, the proper penalty when sexual
intercourse is committed with a victim who is under 12 years of age or is demented is
reclusion perpetua, pursuant to paragraph 1(d),31 Article 266-A in relation to Article
266-B of the RPC, as amended by R.A. No. 8353,32 which in turn amended Article
33533 of the RPC.

The court applied by analogy the foregoing discussion in Quimvel v. People

G.R. No. 214497, April 18, 2017 (823 SCRA 192) to the act of sexual intercourse
with a child exploited in prostitution or subject to other sexual abuse, they then ruled
that when the offended party is under 12 years of age or is demented, only the first
proviso of Section 5(b), Article III of R.A. No. 7610 will apply, to wit: "when the victim
is under twelve (12) years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape x x x." The penalty for statutory rape under Article 335 is
reclusion perpetua, which is. still the same as in the current rape law, i.e., paragraph
1(d), Article 266-A in relation to Article 266-B of the RPC, as amended by R.A. No.
8353, except in cases where the victim is below 7 years of age where the imposable
penalty is death.

It was noted that the second proviso of Section 5(b) of R.A. No. 7610 will not
apply because it clearly has nothing to do with sexual intercourse, and it only deals
with "lascivious conduct when the victim is under 12 years of age." While the terms
"lascivious conduct" and "sexual intercourse" are included in the definition of "sexual
abuse" under Section 2(g)42 of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases, note that the definition of "lascivious conduct"
does not include sexual intercourse. Be it stressed that the purpose of indicating the
phrase "under twelve (12) years of age" is to provide for statutory lascivious conduct
or statutory rape, whereby evidence of force, threat or intimidation is immaterial
because the offended party, who is under 12 years old or is demented, is presumed
incapable of giving rational consent.

Designation of Crime and imposable Penalty

Crime Victim is under 12 Victim is 12 years Victim is 18

Committed: years old or old or older but years old and
demented below 18, or is 18 above
years old but under
special
circumstances
Acts of Lascivious conduct Not applicable
Acts of Lasciviousness under Section 5(b) of
Lasciviousness under Article 336 of R.A. No.
committed the RPC in relation 7610: reclusion
against children to Section 5(b) of temporal in its
exploited in R.A. No. medium period
prostitution or 7610: reclusion to reclusion perpetua
subjected to temporal in its
other sexual medium period
abuse

Sexual Assault Lascivious Conduct Not applicable

Sexual Assault under Article 266- under Section 5(b) of
committed A(2) of the RPC in R.A. No.
against children relation to Section 7610: reclusion
exploited in 5(b) of R.A. No. temporal in its
prostitution or 7610: reclusion medium period
subjected to temporal in its to reclusion perpetua
other sexual medium period
abuse
 Rape under Article Sexual Abuse under Not applicable
Sexual 266-A(1) of the Section 5(b) of R.A.
Intercourse RPC: reclusion No. 7610: reclusion
committed perpetua, except temporal in its
against children when the victim is medium period
exploited in below 7 years old in to reclusion perpetua
prostitution or which case death
subjected to penalty shall be
other sexual imposed
abuse

Rape by carnal Rape under Article Rape under Article Rape under
knowledge 266-A(1) in relation 266-A(1) in relation to Article 266-
to Art. 266-B of the Art. 266-B of the A(1) of the
RPC: reclusion RPC: reclusion RPC: reclusio
perpetua, except perpetua n perpetua
when the victim is
below 7 years old in
which case death
penalty shall be
imposed
Rape by Sexual Sexual Assault Lascivious Conduct Sexual Assault
Assault under Article 266- under Section 5(b) of under Article
A(2) of the RPC in R.A. No. 266-A(2) of the
relation to Section 7610: reclusion RPC: prision
5(b) of R.A. No. temporal in its mayor
7610: reclusion medium period
temporal in its to reclusion perpetua
medium period

In light of the foregoing disquisition, the SC held that Tulagan was aptly
prosecuted for sexual assault under paragraph 2, Article 266-A of the RPC in
Criminal Case. No. SCC-6210 because it was alleged and proven that AAA was nine
(9) years old at the time he inserted his finger into her vagina. Instead of applying the
penalty under Article 266-B of the RPC, which is prision mayor, the proper penalty
should be that provided in Section 5(b), Article III of R.A. No. 7610, which is
reclusion temporal in its medium period. This is because AAA was below twelve (12)
years of age at the time of the commission of the offense, and that the act of
inserting his finger in AAA's private part undeniably amounted to "lascivious
conduct."129 Hence, the proper nomenclature of the offense should be Sexual
Assault under paragraph 2, Article 266-A of the RPC, in relation to Section 5(b),
Article III of R.A. No. 7610.

Applying the Indeterminate Sentence Law, the maximum term of the

indeterminate penalty shall be that which could be properly imposed under the law,
which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal.
On the other hand, the minimum term shall be within the range of the penalty next
lower in degree, which is reclusion temporal in its minimum period, or twelve (12)
years and one (1) day to fourteen (14) years and eight (8) months. Hence, Tulagan
should be meted the indeterminate sentence of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen
(15) years, six (6) months and twenty (20) days of reclusion temporal, as
maximum.

In Criminal Case No. SCC-6211 for statutory rape, the court affirmed that
Tulagan should suffer the penalty of reclusion perpetua in accordance with
paragraph 1(d), Article 266-A in relation to Article 266-B of the RPC, as amended by
R.A. No. 8353.

Damages

Exemplary
Crime Civil Indemnity Moral Damages
Damages
Acts of P20,000.00 P20,000.00 P20,000.00
Lasciviousness
under Article 336
of the RPC [Victim
is of legal age]
Acts of P50,000.00 P50,000.00 P50,000.00
lasciviousness in
relation to Section
5(b) of R.A. No.
7610 [Victim is a
child under 12
years old or is
demented]
Sexual Abuse or P75,000.00 (If P75,000.00 (If P75,000.00 (If
Lascivious penalty imposed penalty imposed penalty imposed
Conduct under is reclusion is reclusion is reclusion
Section 5(b) of perpetua) perpetua) perpetua)
R.A. No. 7610
P50,000.00 (If
P50,000.00 (If
[Victim is a child
penalty imposed
penalty imposed P50,000.00 (If
12 years old and
is within the
is within the penalty imposed
below 18, or
range
range is within the range
above 18 under
of reclusion
of reclusion of reclusion
special
temporal
temporal temporal medium)
circumstances]
medium)
medium)

Sexual Assault P30,000.00 P30,000.00 P30,000.00

under Article 266-
A(2) of the RPC
[Victim is of legal
age]
Sexual Assault P50,000.00 P50,000.00 P50,000.00
under Article 266-
A(2) of the RPC in
relation to Section
5(b) of R.A. No.
7610 [Victim is a
child under 12
years old or is
demented]
 It was settled that an award of civil indemnity ex delicto is mandatory upon a
finding of the fact of rape, and moral damages may be automatically awarded in rape
cases without need of proof of mental and physical suffering. The award of
exemplary damages is also called for to set a public example and to protect the
young from sexual abuse. As to the civil liability in Criminal Case No. SCC-6210 for
sexual assault under paragraph 2, Article 266-A of the RPC, in relation to Section
5(b) of R.A. No. 7610, Tulagan should, therefore, pay AAA the amounts of
P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P50,000.00 as
exemplary damages.

Anent the award of damages in Criminal Case No. SCC-6211 for statutory
rape, the SC modified the same in line with the ruling in People v. Jugueta (783 Phil.
806) (2016) where they held that "when the circumstances surrounding the crime call
for the imposition of reclusion perpetua only, there being no ordinary aggravating
circumstance, the proper amounts should be P75,000.00 as civil indemnity,
P75,000.00 as moral damages, and P75,000.00 as exemplary damages." Also in
consonance with prevailing jurisprudence, the amount of damages awarded shall
earn interest at the rate of six percent (6%) per annum from the finality of this
judgment until said amounts are fully paid.

Over and above the foregoing, the court observed that despite the clear intent
of R.A. No. 7610 to provide for stronger deterrence and special protection against
child abuse, the penalty for violation of Section 5(b) of R.A. No. 7610 [reclusion
temporal medium] when the victim is under 12 years old is lower compared to the
penalty [reclusion temporal medium to reclusion perpetua] when the victim is 12
years old and below 18. The same holds true if the crime of acts of lasciviousness
is attended by an aggravating circumstance or committed by persons under Section
31,136 Article XII of R.A. No. 7610, in which case, the imposable penalty is reclusion
perpetua. In contrast, when no mitigating or aggravating circumstance attended the
crime of acts of lasciviousness, the penalty therefor when committed against a child
under 12 years old is aptly higher than the penalty when the child is 12 years old and
below 18. This is because, applying the Indeterminate Sentence Law, the minimum
term in the case of the younger victims shall be taken from reclusion temporal
minimum, whereas as the minimum term in the case of the older victims shall be
taken from prision mayor medium to reclusion temporal minimum. It is a basic rule in
statutory construction that what courts may correct to reflect the real and apparent
intention of the legislature are only those which are clearly clerical errors or obvious
mistakes, omissions, and misprints, but not those due to oversight, as shown by a
review of extraneous circumstances, where the law is clear, and to correct it would
be to change the meaning of the law. Thus, a corrective legislation is the proper
remedy to address the noted incongruent penalties for acts of lasciviousness
committed against a child.

The Court further noted that R.A. No. 8353 did not expressly repeal Article
336 of the RPC, as amended. Section 4 of R.A. No. 8353 only states that Article 336
of the RPC, as amended, and all laws, rules and regulations inconsistent with or
contrary to the provisions thereof are deemed amended, modified or repealed,
accordingly. There is nothing inconsistent between the provisions of Article 336 of
the RPC, as amended, and R.A. No. 8353, except in sexual assault as a form of
rape. To recall, R.A. No. 8353 only modified Article 336 of the RPC, as follows: (1)
by carrying over to acts of lasciviousness the additional circumstances141 applicable
to rape, viz.: threat and fraudulent machinations or grave abuse of authority; (2) by
retaining the circumstance that the offended party is under 12 years old, and
including dementia as another one, in order for acts of lasciviousness to be
considered as statutory, wherein evidence of force or intimidation is immaterial
because the offended party who is under 12 years old or demented, is presumed
incapable of giving rational consent; and (3) by removing from the scope of acts of
lasciviousness and placing under the crime of rape by sexual assault the specific
lewd act of inserting the offender's penis into another person's mouth or anal orifice,
or any instrument or object into the genital or anal orifice of another person. Hence,
Article 336 of the RPC, as amended, is still a good law despite the enactment of R.A.
No. 8353 for there is no irreconcilable inconsistency between their provisions. When
the lascivious act is not covered by R.A. No. 8353, then Article 336 of the RPC is
applicable, except when the lascivious conduct is covered by R.A. No. 7610.

The SC were also not unmindful of the fact that the accused who commits
acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b) of
R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium
period, than the one who commits Rape Through Sexual Assault, which is merely
punishable by prision mayor.

In People v. Chingh, (661 Phil. 208) (2011) We noted that the said fact is
undeniably unfair to the child victim, and it was not the intention of the framers of
R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses
committed to children. We held that despite the passage of R.A. No. 8353, R.A. No.
7610 is still a good law, which must be applied when the victims are children or those
"persons below eighteen (18) years of age or those over but are unable to fully take
care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition."

Finally, despite the enactment of R.A. No. 8353 more than 20 years ago in
1997, the SC had been consistent in their rulings in Larin, Olivarez, and Garingarao,
Quimvel and Caoili, all of which uphold the intent of R.A. No. 7610 to provide special
protection of children and stronger deterrence against child abuse. Judicial stability
compels to stand by, but not to abandon, our sound rulings: [1] that Section 5(b),
Article III of R.A. No. 7610 penalizes not only child prostitution, the essence of which
is profit, but also other forms of sexual abuse wherein a child engages in sexual
intercourse or lascivious conduct through coercion or influence; and [2] that it is
inconsequential that the sexual abuse occurred only once. Our rulings also find
textual anchor on Section 5, Article III of R.A. No. 7610, which explicitly states that a
child is deemed "exploited in prostitution or subjected to other sexual abuse," when
the child indulges in sexual intercourse or lascivious conduct for money, profit or any
other consideration, or under the coercion or influence of any adult, syndicate or
group, as well as on Section 3(b), Article I thereof, which clearly provides that the
term "child abuse" refers to the maltreatment, whether habitual or not, of the child
which includes sexual abuse.