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Republic of the Philippines

EN BANC

G.R. No. 167147 August 3, 2005

PEOPLE OF THE PHILIPPINES, Appellee,

DECISION

PER CURIAM:

Appellant Genaro Cayabyab y Fernandez was sentenced to death by the RegionalTrialCourtofPasayCity, Branch
109, in Criminal Case No. 01-1311, for rape committed against six-year-old Alpha Jane Bertiz.1

Alpha Jane was born on November 26, 1994,2 and the eldest among the six children of Conrado and Metchie
Bertiz.3 She was six years and nine months old when the rape was committed on August 7, 2001.

On that day, at around 6:00 p.m., Alpha Jane was at home in Manlunas St., Lagoon Area, Villamor Airbase,
PasayCity, taking care of her younger siblings. Her mother went to buy kerosene, while her father was out. On the
guise of teaching arithmetic, appellant went to the victim's house and asked her to lie down on her father's bed.
When she refused, appellant removed her clothes and his own clothes, then forced her to lie down on the bed and
laid on top of her and inserted his penis into her vagina. Alpha Jane shouted in pain which startled the appellant who
sprayed her with tear gas and left.4

Her mother, Metchie arrived shortly thereafter and Alpha Jane told her what had happened. She immediately
reported the incident to the barangay officials and brought Alpha Jane to the Philippine Air Force General Hospital
for medical examination. She also sought assistance from the police at the 521st Air Police Squadron who, after
gathering information from the victim, arrested the appellant at his house.5 Alpha Jane was brought to the PNP
Crime Laboratory at CampCrame the following day,6 and on August 10, 2001, to the Child Protection Unit (CPU) at
UP-PGH7 for further medical examinations, which both found hymenal abrasions and lacerations, respectively, on
the victim's genitalia.8

On August 10, 2001, appellant was charged with rape before the RegionalTrialCourtofPasayCity in an Information
that reads:

That on or about the 07th day of August 2001, in Pasay City, Metro , Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, GENARO CAYABYAB Y FERNANDEZ, did then and there wilfully,
unlawfully, and feloniously by means of force and intimidation have carnal knowledge of ALPHA JEAN BERTIS Y
JONGCO, a minor six (6) years of age, against her will and consent.

CONTRARY TO LAW.9

When arraigned, appellant pleaded not guilty to the charge. Trial then ensued.

Appellant raised the defenses of denial and alibi. He testified that on August 7, 2001, he was plying his normal route
inside the Villamor Airbase as a tricycle driver from 6:00 a.m. until 7:00 p.m.10 After returning the tricycle to its owner
Roberto Gabo at the corner of 14th and 15th Sts., Villamor Airbase, he reached home at around 7:30 p.m and went
to sleep after eating dinner.11 At around 9:30 p.m., he woke up to urinate at the back of their house when three (3)
policemen arrested and mauled him.12 At the headquarters, he was forced to admit the rape13 while the victim's
father asked for money in exchange for his release, which he refused.14

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The trial court gave credence to the testimonies of the prosecution witnesses. It found the victim's testimony
consistent with the medical findings of the doctors from the PNP Crime Laboratory and CPU, UP-PGH. Moreover, it
applied the rule that an unsubstantiated defense of denial and alibi cannot prevail over a positive and categorical
testimony of a minor victim. Finally, it appreciated the qualifying circumstance of minority and imposed the penalty of
death. The dispositive portion reads:

In view of all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Genaro
Cayabyab y Fernandez beyond reasonable doubt for rape as defined and penalized under Article 335, paragraph 3
and 4 as the victim herein is only six (6) years old and hereby sentence accused Genaro Cayabyab y Fernandez to
DEATH and to pay civil indemnity in the amount of Php 75,000.00 and moral and exemplary damages in the amount
of Php 50,000.00 with subsidiary imprisonment in case of insolvency.

SO ORDERED.15

The case was directly elevated to this Court for automatic review. However, pursuant to our decision in People v.
Mateo16 modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as direct appeals
from the Regional Trial Court to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua
or life imprisonment, this case was transferred to the Court of Appeals,17 which affirmed in toto the decision of the
trial court, thus:

IN VIEW OF ALL THE FOREGOING, the decision of the trial court finding accused-appellant guilty beyond
reasonable doubt of the crime of rape and sentencing him to suffer the supreme penalty of death is AFFIRMED in
toto, and accordingly certifies the case and elevate the entire records to the Supreme Court for review pursuant to
Rule124, Section 13[a] of the Revised Rules on Criminal Procedure, as amended by A.M. No. 00-5-03-SC.

SO ORDERED.18

We have painstakingly reviewed the evidence on record and found no cogent reason to disturb the findings of the
trial court and the appellate court. There is no doubt that appellant raped Alpha Jane on August 7, 2001 inside their
house at Villamor Airbase, PasayCity. This credibility given by the trial court to the rape victim is an important aspect
of evidence19 which appellate courts can rely on because of its unique opportunity to observe the witnesses,
particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsel.

On direct examination, Alpha Jane narrated the incident and positively identified appellant as her assailant, thus:

Fiscal Barrera:

Now at around 6:00 p.m. of August 7, 2001 where were you?

A. I was inside our house.

Q. You mean your house at lagoon area, Villamor Air Base, Pasay City?

A. Yes, sir.

Q. What about you mother and father where were they on that date and time?

A. My mother bought gas while my father was 'naglalakad ng spray gun for painting.

Q. Who were left in your house on August 7, 2001 at 6:00 p.m. while your mother bought gas and your father was
walking with his spray gun used for painting?

A. My brothers and sisters.

Q. While in your house on said date and time do you know of any unusual incident that happened to you?

A. Yes, sir.

Q. What was that unusual incident that happened to you?

A. Kuya Jimmy entered our house.

Q. After Kuya Jimmy entered your house, what happened next?

A. Kuya Jimmy called for me inside our house.

A. He asked me one plus one and I answered two.

Q. After that what else happened?

A. He asked me to lie down on my father's bed.

Q. Did you follow him?

A. No, sir, I did not follow.

Q. And so what else happened?

A. He removed my clothes 'hinubaran niya ako; he removed my shorts and panty.

Q. After Kuya Jimmy removed your shorts and panty, what happened?

A. 'Pinatungan po niya ako', he laid on top of me.

Q. What happened when he laid on top of you?

A. He inserted his penis inside my private part.

Fiscal Barrera:

What did you do when this Kuya Jimmy inserted his penis to your private part?

A. I shouted, sir.

Q. After Kuya Jimmy inserted his penis inside your vagina and you shouted, what happened?

A. 'Pinakawalan niya ako', he released me.

Q. Then what happened?

A. 'Tinergas niya ako.

Q. After Kuya Jimmy teargas you, what happened?

A. I run away.

Q. Regarding what Kuya Jimmy did to you, did you report it to your mother?

A. Yes, sir.

Q. This Kuya Jimmy whom you said went inside your house and removed your shorts and panty and thereafter
inserted his penis inside your vagina on August 7, 2001 can you point at him if you see him?

A. Yes, sir.

Q. If this Kuya Jimmy Cayabyab is inside the courtroom will you be able to identify him?

A. Yes, sir.

Q. Is he inside the courtroom?

Interpreter:

Witness pointed to a person who answered by the name of Genaro Cayabyab.20

Despite grueling cross-examination by the defense suggesting extortion by the victim's father, Alpha Jane remained
steadfast and consistent that it was appellant who raped her. The victim's testimony was supported by the medico-
legal report of the medico-legal experts from the PNP Crime Laboratory and CPU, UP-PGH, to wit:

ANO-GENITAL
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 EXAMINATION

Hymen: Tanner Stage 2, hymenal transection at 5 oclock, Type of Hymen: Anullar

...

IMPRESSIONS

Evidence of blunt force or penetrating trauma.

(Exh. 'L', p. 8, Records)

Dr. Baluyut explained that in her findings, the terms hymenal transection at 5 oclock and laceration at 5 oclock are
synonymous (TSN, November 20, 2001, p. 6). Dr. Baluyut further explained that there was prior injury to the victim's
hymen which might have been caused by the insertion of a blunt object such as an erected penis which was
compatible with the victim's claim that she had been raped (TSN, November 20, 2001, pp. 6-7).21

The trial court correctly imposed the death penalty.

Rape, such as committed against a 'child below seven (7) years old', is a dastardly and repulsive crime which merit
no less than the penalty of death pursuant to Article 266-B of the Revised Penal Code. This special qualifying
circumstance of age must be specifically pleaded or alleged with certainty in the information and proven during the
trial; otherwise the penalty of death cannot be imposed.

In the case of People v. Pruna,22 this Court took note of conflicting pronouncements concerning the appreciation of
minority, either as an element of the crime or as a qualifying circumstance. There were a number of cases where no
birth certificate was presented where the Court ruled that the age of the victim was not duly proved.23 On the other
hand, there were also several cases where we ruled that the age of the rape victim was sufficiently established
despite the failure of the prosecution to present the birth certificate of the offended party to prove her age.24 Thus, in
order to remove any confusion, we set in Pruna the following guidelines in appreciating age, either as an element
of the crime or as a qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of
live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school
records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or
consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years
old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years
old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18
years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives
concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted
by the accused.78

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not be taken against him.25

To paraphrase Pruna, the best evidence to prove the age of a person is the original birth certificate or certified true
copy thereof; in their absence, similar authentic documents may be presented such as baptismal certificates and
school records. If the original or certified true copy of the birth certificate is not available, credible testimonies of the
victim's mother or a member of the family may be sufficient under certain circumstances. In the event that both the
birth certificate or other authentic documents and the testimonies of the victim's mother or other qualified relative are
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unavailable, the testimony of the victim may be admitted in evidence provided that it is expressly and clearly
admitted by the accused.

In Pruna, no birth certificate or any similar authentic document, such as the baptismal certificate of the victim
was presented to prove her age. The trial court based its finding that Lizette was 3 years old when she was raped
on the Medico-Legal Report, and the fact that the defense did not contest her age and questioned her qualification
to testify because of her tender age. It was however noted that the Medico-Legal Report never mentioned her age
and only the testimony of her mother was presented to establish Lizette's age. The Court found that there was
uncertainty as to the victim's exact age, hence, it required that corroborative evidence, such as her birth certificate,
baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying
circumstance of 'below seven (7) years old is appreciated.

Unlike in Pruna, the trial court in this case made a categorical finding that Alpha Jane was only 6 years old at the
time she was raped, based not only on the testimonies of the complainant and her mother, but also on the strength
of the photocopy of Alpha Jane's birth certificate. It is well to note that the defense did not object to the presentation
of the birth certificate; on the contrary it admitted the same 'as to fact of birth.

We are not unaware of our ruling in People v. Mantis26 that a mere photocopy of the birth certificate, in the absence
of any showing that the original copy was lost or destroyed, or was unavailable, without the fault of the prosecution,
does not prove the victim's minority, for said photocopy does not qualify as competent evidence for that purpose.

However, there are other exceptions to the 'best evidence rule as expressly provided under Section 3, Rule 130 of
the Rules of Court, which reads:

Sec. 3. Original document must be produced; exceptions. ' When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following
cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
[Emphasis supplied]

Without doubt, a certificate of live birth is a public record in the custody of the local civil registrar who is a public
officer. Clearly, therefore, the presentation of the photocopy of the birth certificate of Alpha Jane is admissible as
secondary evidence to prove its contents. Production of the original may be dispensed with, in the trial court's
discretion, whenever in the case at hand the opponent does not bona fide dispute the contents of the document and
no other useful purpose will be served by requiring production.27

In the case at bar, the defense did not dispute the contents of the photocopied birth certificate; in fact it admitted the
same. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the
same became a primary evidence, and deemed admitted and the other party is bound thereby.28

In fine, we find that the prosecution sufficiently proved that Alpha Jane was only six-years-old, being born on
November 26, 1994, when the rape incident happened on August 7, 2001.

Anent the award of damages, we sustain the award of P75,000.00 as civil indemnity consistent with the prevailing
jurisprudence that if the crime is qualified by circumstances which warrant the imposition of the death penalty by
applicable amendatory laws, the accused should be ordered to pay the complainant the amount of P75,000.00 as
civil indemnity.

The Court notes that the trial court awarded P50,000.00 as moral and exemplary damages. Moral damages is
distinct from exemplary damages, hence must be awarded separately. The award of moral damages is automatically
granted in rape cases without need of further proof other than the commission of the crime because it is assumed
that a rape victim has actually suffered moral injuries entitling her to such award.29 However, the award of
P50,000.00 must be increased to P75,000.00 in accord with prevailing jurisprudence.30 As regards exemplary
damages, we held in People v. Catubig31 that the presence of an aggravating circumstance, whether ordinary or
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qualifying, entitles the offended party to an award of exemplary damages. Conformably, we award the amount of
P25,000.00 as exemplary damages in accord with the prevailing jurisprudence.32

WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 109, in Criminal Case No. 01-1311, as
affirmed in toto by the Court of Appeals in CA-G.R. CR.-H.C. No. 00258, finding appellant Genaro Cayabyab y
Fernandez guilty beyond reasonable doubt of the crime of rape and imposing the penalty of DEATH33 is AFFIRMED
with the MODIFICATION that appellant is further ordered to pay the victim P75,000.00 as moral damages and
P25,000.00 as exemplary damages.

SO ORDERED.

HILARIO G. DAVIDE, JR.

Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice ' 'Associate Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice ' Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO-MORALES ROMEO J. CALLEJO, SR.

Associate Justice ' Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above per
curiam Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
The majority opinion, and the concurring or separate opinions supporting the imposition of the death sentence, as
well as the dissenting opinions are set out in full, or otherwise adverted to, but without indicating the names of the
Justices who penned the same. The decision is signed by all the Members of the Court who actually participated in
the deliberation in the case and voted therein but does not indicate the vote cast by any Member, whether
concurring in or dissenting from the judgment, or both.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes

Endnotes:
1 Also spelled as Alpha 'Jean Bertiz in some parts of the records.cralaw

2
Records, p. 9.cralaw
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3
TSN, 23 January 2002, p. 9. cralaw
4
TSN, 16 January 2002, pp. 3-4.cralaw
5
TSN, 23 January 2002, pp. 4-5.cralaw
6
Id. at 13.cralaw
7
Id. at 7.cralaw
8
Records, pp. 8 & 10.cralaw
9
Id. at 2.cralaw
10
TSN, 27 February 2002, pp. 8-9.cralaw
11
Id. at 9-10.cralaw
12
Id. at 10-11.cralaw
13
Id. at 12.cralaw
14
Id. at 13-14.cralaw
15
Rollo, p. 33. Penned by Judge Lilia C. Lopez.cralaw
16
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.cralaw
17
Docketed as CA-G.R. CR.-H.C. No. 00258. cralaw
18
Rollo, p. 163. Penned by Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate
Justices Josefina Guevara-Salonga and Fernanda Lampas Peralta.cralaw
19
People v. Paranzo, 375 Phil. 796, 814 (1999).cralaw
20
TSN, 16 January 2002, pp. 3-4.cralaw
21
Rollo, p. 95.cralaw
22
439 Phil. 440 [2002].cralaw
23
Id. at 465-468.cralaw
24
Id. at 468-470.

cralaw
25
Id.at 470-471.cralaw
26
G.R. Nos. 150613-14, June 29, 2004, 433 SCRA 236, 249.cralaw
27
Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, 3 April 2001, 356 SCRA 108, 138.cralaw
28
People v. Boras, G.R. No. 127495, 22 December 2000, 348 SCRA 638, 645.cralaw
29
People v. Antonio, G.R. No. 157269, 3 June 2004, 430 SCRA 619, 627.cralaw
30
People v. Soriano, G.R. Nos. 142779-95, 29 August 2002, 388 SCRA 140, 172.cralaw
31
416 Phil. 102, 120. cralaw
32
People v. Galigao, G.R. Nos. 140961-63, 14 January 2003, 395 SCRA 195, 209.cralaw
33
Three (3) Justices of the Court maintain their position that Republic Act No. 7659 is unconstitutional insofar
as it prescribes the death penalty, nevertheless they submit to the ruling of the majority that the law is
constitutional, hence the death penalty may be lawfully imposed in this case.
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