7/30/2019 G.R. No. 166441 | Cruz y Bartolome v.

People

FIRST DIVISION

[G.R. No. 166441. October 8, 2014.]

NORBERTO CRUZ y BARTOLOME, petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

DECISION

BERSAMIN, J : p

The intent of the offender to lie with the female defines the distinction
between attempted rape and acts of lasciviousness. The felony of attempted
rape requires such intent; the felony of acts of lasciviousness does not. Only
the direct overt acts of the offender establish the intent to lie with the female.
However, merely climbing on top of a naked female does not constitute
attempted rape without proof of his erectile penis being in a position to penetrate
the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, 1
whereby the Court of Appeals (CA) affirmed the conviction for attempted rape of
the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union
(RTC), and imposing on him the indeterminate penalty of imprisonment of four
(4) years and two (2) months of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum, and ordering him to pay moral damages of
P20,000.00 to AAA, 2 the victim.
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of
lasciviousness involving different victims. At arraignment, he pleaded not guilty
to the respective informations, to wit:
Criminal Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00
o'clock in the morning, along the Bangar-Luna Road, Barangay
Central West No. 2, Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, said
accused, did then and there willfully, unlawfully and feloniously and
by means of force and intimidation commenced the commission of
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rape directly by overt acts, to wit: While private complainant AAA, an

unmarried woman, fifteen (15) years old, was sleeping inside the tent
along Bangar-Luna Road, the said accused remove her panty and
underwear and lay on top of said AAA embracing and touching her
vagina and breast with intent of having carnal knowledge of her by
means of force, and if the accused did not accomplish his purpose
that is to have carnal knowledge of the said AAA it was not because
of his voluntary desistance but because the said offended party
succeeded in resisting the criminal attempt of said accused to the
damage and prejudice of said offended party. ADSIaT

CONTRARY TO LAW. 3
Criminal Case No. 2389
Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00
o'clock in the morning, along the Bangar-Luna Road, Barangay
Central West No. 2, Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused with lewd design, did then and there willfully,
unlawfully and feloniously touch the vagina of [BBB] 4 against the
latter's will and with no other purpose but to satisfy his lascivious
desire to the damage and prejudice of said offended party.

CONTRARY TO LAW. 5 DHSEcI

Version of the Prosecution

The CA summarized the version of the Prosecution as follows: 6
. . . [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz
were engaged in the selling of plastic wares and glass wares in
different municipalities around the country. On December 20, 1993,
Norberto and Belinda employed AAA and BBB to help them in selling
their wares in Bangar, La Union which was then celebrating its fiesta.
From Libsong East, Lingayen, Pangasinan to Bangar, La Union, AAA
and BBB boarded a passenger jeepney owned by Norberto. The
young girls were accompanied by Norberto, Belinda, Ruben
Rodriguez (driver) and a sales boy by the name of "Jess".
Upon reaching Bangar, La Union, at around 8:00 in the
evening of December 20, 1993, they parked in front of Maroon
enterprises. They brought out all the goods and wares for display.
Two tents were fixed in order that they will have a place to sleep.
Belinda and the driver proceeded to Manila in order to get more
goods to be sold.
On December 21, 1993, at around 1:00 o'clock in the morning,
AAA and BBB went to sleep. Less than an hour later, AAA was
awakened when she felt that somebody was on top of her. Norberto
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was mashing her breast and touching her private part. AAA realized
that she was divested of her clothing and that she was totally naked.
Norberto ordered her not to scream or she'll be killed. AAA tried to
push Norberto away and pleaded to have pity on her but her pleas fell
on deaf ears. She fought back and kicked Norberto twice. TCDHaE

Norberto was not able to pursue his lustful desires. Norberto

offered her money and told her not to tell the incident to her mother
otherwise, she will be killed. AAA went out of the tent to seek help
from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw
Norberto touching the private parts of BBB. AAA saw her companion
awake but her hands were shaking. When she finally entered the tent,
Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that
took place that early morning. Later still, while they were on their way
to fetch water, AAA and BBB asked the people around where they
can find the municipal building. An old woman pointed to them the
place.
In the evening of December 21, 1993, AAA and BBB went
straight to the municipal hall where they met a policeman by the name
of "Sabas". They told Sabas the sexual advances made to them by
Norberto. Norberto was summoned to the police station where he
personally confronted his accusers. When Norberto's wife, Belinda,
arrived at the police station, an argument ensued between them.
On December 22, 1993, at around 2:20 o'clock in the morning,
the police investigator ordered the complainants to return at 6:00
o'clock in the morning. Norberto and Belinda were still able to bring
AAA and BBB home with them and worked for them until December
30, 1994, after which they were sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union
and executed their respective sworn statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was
presented in the assailed decision of the CA, 7 as follows:
In a bid to exculpate himself, accused-appellant presents a
totally different version of the story. The accused maintains that it was
not possible for him to commit the crimes hurled against him. On the
date of the alleged incident, there were many people around who
were preparing for the "simbang gabi". Considering the location of the
tents, which were near the road and the municipal hall, he could not
possibly do the dastardly acts out in the open, not to mention the fact
that once AAA and BBB would scream, the policemen in the
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municipal hall could hear them. He believes that the reason why the
complainants filed these cases against him was solely for the
purpose of extorting money from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its
judgment on April 6, 2000 finding the petitioner guilty beyond reasonable doubt
of attempted rape in Criminal Case No. 2388 and acts of lasciviousness in
Criminal Case No. 2389, 8 to wit:
WHEREFORE, in the light of the foregoing, the Court hereby
renders judgment declaring the accused NORBERTO CRUZ Y
BARTOLOME guilty beyond reasonable doubt of the crimes of
ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined
and penalized in Article 335 in relation with (sic) Article 6, par. 3 and
Article 336 of the Revised Penal Code respectively.
With respect to the crime of ATTEMPTED RAPE, the Court
hereby sentences the accused to suffer an indeterminate penalty of
imprisonment from FOUR (4) YEARS and TWO (2) MONTHS
PRISION CORRECCIONAL as Minimum to TEN (10) YEARS
PRISION MAYOR as Maximum and the accessory penalties provided
for by law and to pay the victim AAA the amount of P20,000.00 as
moral damages.
With regard to the crime of ACTS OF LASCIVIOUSNESS, the
Court hereby sentences the accused to suffer an indeterminate
penalty of imprisonment from FOUR (4) MONTHS ARRESTO
MAYOR as Minimum to FOUR (4) YEARS and TWO (2) MONTHS
PRISION CORRECCIONAL as Maximum and the accessory
penalties provided for by law, and to pay the victim BBB the amount of
P10,000.00 as moral damages. cDCaHA

The preventive imprisonment suffered by the accused by

reason of the two cases is counted in his favor.

SO ORDERED. 9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in
convicting him of attempted rape despite the dubious credibility of AAA, and of
acts of lasciviousness despite the fact that BBB did not testify.
On July 26, 2004, the CA promulgated its decision affirming the
conviction of the petitioner for attempted rape in Criminal Case No. 2388, but
acquitting him of the acts of lasciviousness charged in Criminal Case No. 2389
due to the insufficiency of the evidence, 10 holding thusly:

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In sum, the arguments of the accused-appellant are too puerile

and inconsequential as to dent, even slightly, the overall integrity and
probative value of the prosecution's evidence insofar as AAA is
concerned.
Under Article 51 of the Revised Penal Code, the penalty for an
attempted felony is the "penalty lower by two (2) degrees" prescribed
by law for the consummated felony. In this case, the penalty for rape if
it had been consummated would have been reclusion perpetua
pursuant to Article 335 of the Revised Penalty Code, as amended by
Republic Act No. 7659. The penalty two degrees lower than reclusion
perpetua is prision mayor.
Applying the Indeterminate Sentence Law, the maximum term
of the penalty shall be the medium period of prision mayor in the
absence of any mitigating or aggravating circumstance and the
minimum shall be within the range of the penalty next lower to that
prescribed for the offense which in this case is prision correccional in
any of its periods.
We also find that the trial court correctly assessed the amount
of P20,000.00 by way of moral damages against the accused-
appellant. In a rape case, moral damages may be awarded without
the need of proof or pleading since it is assumed that the private
complainant suffered moral injuries, more so, when the victim is aged
13 to 19.
Insofar as the crime of acts of lasciviousness committed
against BBB, the accused argues that there is not enough evidence to
support such accusation. BBB did not testify and neither her sworn
statement was formally offered in evidence to support the charge for
acts of lasciviousness. cSaADC

In this case, the evidence adduced by the prosecution is

insufficient to substantiate the charge of acts of lasciviousness
against the accused-appellant. The basis of the complaint for acts of
lasciviousness is the sworn statement of BBB to the effect that the
accused-appellant likewise molested her by mashing her breast and
touching her private part. However, she was not presented to testify.
While AAA claims that she personally saw the accused touching the
private parts of BBB, there was no testimony to the effect that such
lascivious acts were without the consent or against the will of BBB. 11
Issues
In this appeal, the petitioner posits that the CA's decision was not in
accord with law or with jurisprudence, particularly:
I.

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In giving credence to the incredulous and unbelievable

testimony of the alleged victim; and
II.
In convicting the accused notwithstanding the failure of the
prosecution to prove the guilt of the petitioner beyond reasonable
doubt.
Anent the first issue, the petitioner assails the behavior and credibility of
AAA. He argues that AAA still continued working for him and his wife until
December 30, 1994 despite the alleged attempted rape in the early morning of
December 21, 1994, thereby belying his commission of the crime against her;
that he could not have undressed her without rousing her if she had gone to
sleep only an hour before, because her bra was locked at her back; that her
testimony about his having been on top of her for nearly an hour while they
struggled was also inconceivable unless she either consented to his act and
yielded to his lust, or the incident did not happen at all, being the product only of
her fertile imagination; that the record does not indicate if he himself was also
naked, or that his penis was poised to penetrate her; and that she and her
mother demanded from him P80,000.00 as settlement, under threat that she
would file a case against him. 12
On the second issue, the petitioner assails the glaring inconsistencies in
the testimony of AAA that cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious. AcDHCS

In an appeal under Rule 45 of the Rules of Court, 13 the Court reviews

only questions of law. No review of the findings of fact by the CA is involved. As
a consequence of this rule, the Court accords the highest respect for the factual
findings of the trial court, its assessment of the credibility of witnesses and the
probative weight of their testimonies and the conclusions drawn from its factual
findings, particularly when they are affirmed by the CA. Judicial experience has
shown, indeed, that the trial courts are in the best position to decide issues of
credibility of witnesses, having themselves heard and seen the witnesses and
observed firsthand their demeanor and deportment and the manner of testifying
under exacting examination. As such, the contentions of the petitioner on the
credibility of AAA as a witness for the State cannot be entertained. He thereby
raises questions of fact that are outside the scope of this appeal. Moreover, he
thereby proposes to have the Court, which is not a trier of facts, review the
entire evidence adduced by the Prosecution and the Defense.
Conformably with this limitation, our review focuses only on determining
the question of law of whether or not the petitioner's climbing on top of the
undressed AAA such that they faced each other, with him mashing her breasts
and touching her genitalia with his hands, constituted attempted rape, the crime
for which the RTC and the CA convicted and punished him. Based on the
information, supra, he committed such acts "with intent of having carnal
knowledge of her by means of force, and if the accused did not accomplish his
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purpose that is to have carnal knowledge of the said AAA it was not because of
his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of
said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code,
when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than this own spontaneous
desistance. In People v. Lamahang, 14 the Court, speaking through the eminent
Justice Claro M. Recto, eruditely expounded on what overt acts would
constitute an attempted felony, to wit:
It is our opinion that the attempt to commit an offense which the
Penal Code punishes is that which has a logical relation to a
particular, concrete offense; that, which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading
directly to its realization and consummation. The attempt to commit an
indeterminate offense, inasmuch as its nature in relation to its
objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. . . . But it is not sufficient, for the purpose of imposing
penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its
effect, with the deed which, upon its consummation, will develop into
one of the offenses defined and punished by the Code; it is necessary
to prove that said beginning of execution, if carried to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. . . . . aTEHIC

"It must be borne in mind (I Groizard, p. 99) that in offenses not

consummated, as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained, but the
same must be inferred from the nature of the acts of execution (accion
medio). Hence, the necessity that these acts be such that by their very
nature, by the facts to which they are related, by the circumstances of
the persons performing the same, and by the things connected
therewith, they must show without any doubt, that they are aimed at
the consummation of a crime. Acts susceptible of double
interpretation, that is, in favor as well as against the culprit, and which
show an innocent as well as a punishable act, must not and cannot
furnish grounds by themselves for attempted or frustrated crimes. The
relation existing between the facts submitted for appreciation and the
offense of which said facts are supposed to produce must be direct;
the intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instance of injustice, that the
mind be able to directly infer from them the intention of the perpetrator
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to cause a particular injury. This must have been the intention of the
legislator in requiring that in order for an attempt to exist, the offender
must commence the commission of the felony directly by overt acts,
that is to say, that the acts performed must be such that, without the
intent to commit an offense, they would be meaningless." 15
To ascertain whether the acts performed by the petitioner constituted
attempted rape, we have to determine the law on rape in effect on December 21,
1993, when the petitioner committed the crime he was convicted of. That law
was Article 335 of the Revised Penal Code, which pertinently provided as
follows:
Article 335. When and how rape is committed. — Rape is
committed by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age, even
though neither of the circumstances mentioned in the two next
preceding paragraphs shall be present. DaIAcC

xxx xxx xxx

The basic element of rape then and now is carnal knowledge of a female.
Carnal knowledge is defined simply as "the act of a man having sexual bodily
connections with a woman," 16 which explains why the slightest penetration of
the female genitalia consummates the rape. In other words, rape is
consummated once the penis capable of consummating the sexual act touches
the external genitalia of the female. 17 In People v. Campuhan, 18 the Court has
defined the extent of "touching" by the penis in rape in the following terms:
[T]ouching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs, a
slight brush or a scrape of the penis on the external layer of the
victim's vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched
the labias or slid into the female organ, and not merely stroked
the external surface thereof, for an accused to be convicted of
consummated rape. As the labias, which are required to be
"touched" by the penis, are by their natural situs or location
beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora
or the labia minora of the pudendum constitutes consummated
rape.

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The pudendum or vulva is the collective term for the female

genital organs that are visible in the perineal area, e.g., mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal orifice,
etc. The mons pubis is the rounded eminence that becomes hairy
after puberty, and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ composed of
the outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the
labia minora. Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, and not merely for the penis to
stroke the surface of the female organ. . . . Thus, a grazing of the
surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis,
there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness. [Bold emphasis
supplied] aITDAE

It is noteworthy that in People v. Orita, 19 the Court clarified that the ruling
in People v. Eriñia 20 whereby the offender was declared guilty of frustrated rape
because of lack of conclusive evidence of penetration of the genital organ of the
offended party, was a stray decision for not having been reiterated in
subsequent cases. As the evolving case law on rape stands, therefore, rape in
its frustrated stage is a physical impossibility, considering that the requisites of
a frustrated felony under Article 6 of the Revised Penal Code are that: (1) the
offender has performed all the acts of execution which would produce the
felony; and (2) that the felony is not produced due to causes independent of the
perpetrator's will. Obviously, the offender attains his purpose from the moment
he has carnal knowledge of his victim, because from that moment all the
essential elements of the offense have been accomplished, leaving nothing
more to be done by him. 21
Nonetheless, rape admits of an attempted stage. In this connection, the
character of the overt acts for purposes of the attempted stage has been
explained in People v. Lizada: 22
An overt or external act is defined as some physical activity or
deed, indicating the intention to commit a particular crime, more than
a mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the
perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d'etre for the law requiring a direct overt act is
that, in a majority of cases, the conduct of the accused
consisting merely of acts of preparation has never ceased to be
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equivocal; and this is necessarily so, irrespective of his declared

intent. It is that quality of being equivocal that must be lacking
before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act
or before any fragment of the crime itself has been committed,
and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the
accused is. It is necessary that the overt act should have been the
ultimate step towards the consummation of the design. It is sufficient if
it was the "first or some subsequent step in a direct movement
towards the commission of the offense after the preparations are
made." The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a
causal relation to the intended crime. In the words of Viada, the
overt acts must have an immediate and necessary relation to the
offense. (Bold emphasis supplied) HISAET

In attempted rape, therefore, the concrete felony is rape, but the

offender does not perform all the acts of execution of having carnal
knowledge. If the slightest penetration of the female genitalia consummates
rape, and rape in its attempted stage requires the commencement of the
commission of the felony directly by overt acts without the offender
performing all the acts of execution that should produce the felony, the only
means by which the overt acts performed by the accused can be shown to
have a causal relation to rape as the intended crime is to make a clear
showing of his intent to lie with the female. Accepting that intent, being a
mental act, is beyond the sphere of criminal law, 23 that showing must be
through his overt acts directly connected with rape. He cannot be held liable
for attempted rape without such overt acts demonstrating the intent to lie
with the female. In short, the State, to establish attempted rape, must show
that his overt acts, should his criminal intent be carried to its complete
termination without being thwarted by extraneous matters, would ripen into
rape, 24 for, as succinctly put in People v. Dominguez, Jr.: 25 "The gauge in
determining whether the crime of attempted rape had been committed is the
commencement of the act of sexual intercourse, i.e., penetration of the penis
into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already
touching her genitalia with his hands and mashing her breasts when she freed
herself from his clutches and effectively ended his designs on her. Yet, inferring
from such circumstances that rape, and no other, was his intended felony would
be highly unwarranted. This was so, despite his lust for and lewd designs
towards her being fully manifest. Such circumstances remained equivocal, or
"susceptible of double interpretation," as Justice Recto put in People v.
Lamahang, supra, such that it was not permissible to directly infer from them
the intention to cause rape as the particular injury. Verily, his felony would not

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exclusively be rape had he been allowed by her to continue, and to have sexual
congress with her, for some other felony like simple seduction (if he should
employ deceit to have her yield to him) 26 could also be ultimate felony.
We clarify that the direct overt acts of the petitioner that would have
produced attempted rape did not include equivocal preparatory acts. The former
would have related to his acts directly connected to rape as the intended crime,
but the latter, whether external or internal, had no connection with rape as the
intended crime. Perforce, his perpetration of the preparatory acts would not
render him guilty of an attempt to commit such felony. 27 His preparatory acts
could include his putting up of the separate tents, with one being for the use of
AAA and BBB, and the other for himself and his assistant, and his allowing his
wife to leave for Manila earlier that evening to buy more wares. Such acts, being
equivocal, had no direct connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Code for as long as they remained
equivocal or of uncertain significance, because by their equivocality no one
could determine with certainty what the perpetrator's intent really was. 28 HICSTa

If the acts of the petitioner did not constitute attempted rape, did they
constitute acts of lasciviousness?
It is obvious that the fundamental difference between attempted rape and
acts of lasciviousness is the offender's intent to lie with the female. In rape,
intent to lie with the female is indispensable, but this element is not required in
acts of lasciviousness. 29 Attempted rape is committed, therefore, when the
"touching" of the vagina by the penis is coupled with the intent to penetrate. The
intent to penetrate is manifest only through the showing of the penis capable of
consummating the sexual act touching the external genitalia of the female. 30
Without such showing, only the felony of acts of lasciviousness is committed. 31
Based on Article 336 of the Revised Penal Code, the felony of acts of
lasciviousness is consummated when the following essential elements concur,
namely: (a) the offender commits any act of lasciviousness or lewdness upon
another person of either sex; and (b) the act of lasciviousness or lewdness is
committed either (i) by using force or intimidation; or (ii) when the offended
party is deprived of reason or is otherwise unconscious; or (iii) when the
offended party is under 12 years of age. 32 In that regard, lewd is defined as
obscene, lustful, indecent, lecherous; it signifies that form of immorality that has
relation to moral impurity; or that which is carried on a wanton manner. 33
The information charged that the petitioner "remove[d] her panty and
underwear and la[id] on top of said AAA embracing and touching her vagina and
breast." With such allegation of the information being competently and
satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and touching her vagina
and breasts did not directly manifest his intent to lie with her. The lack of
evidence showing his erectile penis being in the position to penetrate her when
he was on top of her deterred any inference about his intent to lie with her. At
most, his acts reflected lewdness and lust for her.

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The intent to commit rape should not easily be inferred against the
petitioner, even from his own declaration of it, if any, unless he committed overt
acts directly leading to rape. A good illustration of this can be seen in People v.
Bugarin, 34 where the accused was charged with attempted rape through an
information alleging that he, by means of force and intimidation, "did then and
there willfully, unlawfully and feloniously commence the commission of the
crime of Rape directly by overt acts, by then and there kissing the nipples and
the vagina of the undersigned [complainant], a minor, and about to lay on top of
her, all against her will, however, [he] did not perform all the acts of execution
which would have produced the crime of Rape by reason of some causes other
than his own spontaneous desistance, that is, undersigned complainant
push[ed] him away." The accused was held liable only for acts of lasciviousness
because the intent to commit rape "is not apparent from the act described," and
the intent to have sexual intercourse with her was not inferable from the act of
licking her genitalia. The Court also pointed out that the "act imputed to him
cannot be considered a preparatory act to sexual intercourse." 35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being
guilty of acts of lasciviousness, is punished with prision correccional. In the
absence of modifying circumstances, prision correccional is imposed in its
medium period, which ranges from two (2) years, four (4) months and one day
to four (4) years and two (2) months. Applying the Indeterminate Sentence Law,
the minimum of the penalty should come from arresto mayor, the penalty next
lower than prision correccional which ranges from one (1) month to six (6)
months. Accordingly, the Court fixes the indeterminate sentence of three (3)
months of arresto mayor, as the minimum, to two (2) years, four (4) months and
one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the
offender violates her chastity by his lewdness. "Moral damages include physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act for omission." 36 Indeed,
Article 2219, (3), of the Civil Code expressly recognizes the right of the victim in
acts of lasciviousness to recover moral damages. 37 Towards that end, the
Court, upon its appreciation of the record, decrees that P30,000.00 is a
reasonable award of moral damages. 38 In addition, AAA was entitled to recover
civil indemnity of P20,000.00. 39 DAHaTc

Under Article 2211 of the Civil Code, the courts are vested with the
discretion to impose interest as a part of the damages in crimes and quasi-
delicts. In that regard, the moral damages of P20,000.00 shall earn interest of
6% per annum reckoned from the finality of this decision until full payment. 40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner
NORBERTO CRUZ y BARTOLOME guilty of ACTS OF LASCIVIOUSNESS,
and, ACCORDINGLY, PENALIZES him with the indeterminate sentence of three

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(3) months of arresto mayor, as the minimum, to two (2) years, four (4) months
and one day of prision correccional, as the maximum; ORDERS him to pay
moral damages of P30,000.00 and civil indemnity of P20,000.00 to the
complainant, with interest of 6% per annum on such awards reckoned from the
finality of this decision until full payment; and DIRECTS him to pay the costs of
suit.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Perez and Perlas-Bernabe, JJ.,
concur.

Footnotes

1. Rollo, pp. 38-49; penned by Associate Justice Eliezer R. Delos Santos

(deceased), and concurred in by Associate Justice Delilah Vidallon-Magtolis
(retired) and Associate Justice Arturo D. Brion (now a Member of the Court).
2. The real name of the offended party is withheld pursuant to Republic Act
No. 7610 (Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act); Republic Act No. 9262 (Anti-Violence Against
Women and Their Children Act of 2004); and A.M. No. 04-10-11-SC effective
November 15, 2004 (Rule on Violence Against Women and Their Children).
See also People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502
SCRA 419, 421-423.
3. Rollo, p. 51.
4. The real name of the offended party is also withheld for the reason stated
in note 2.
5. Rollo, pp. 51-52.
6. Supra note 1, at 39-41.
7. Supra note 1, at 41.
8. Rollo, pp. 51-58.
9. Id. at 57-58.
10. Supra note 1.
11. Id. at 47-49.
12. Id. at 19-23.
13. Section 1 of Rule 45, Rules of Court states:
Section 1. Filing of petition with Supreme Court. — A party desiring
to appeal by certiorari from a judgment, final order or resolution of the Court
of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may
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include an application for a writ of preliminary injunction or other

provisional remedies and shall raise only questions of law, which must
be distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at
any time during its pendency.
14. 61 Phil. 703 (1935).
15. Id. at 705-707.
16. People v. Orita, G.R. No. 88724, April 3, 1990, 184 SCRA 105, 113,
citing Black's Law Dictionary, Fifth Edition, p. 193.
17. People v. Jalosjos, G.R. Nos. 132875-876, November 16, 2001, 369
SCRA 179, 202.
18. G.R. Nos. 129433, March 30, 2000, 329 SCRA 270, 280-282.
19. Supra note 16.
20. 50 Phil. 998 (1927).
21. Id. at 114.
22. G.R. No. 143468-71, January 24, 2003, 396 SCRA 62, 94-95.
23. I Feria & Gregorio, Comments on the Revised Penal Code, First Edition
(1958), Central Book Supply, Inc., Manila, p. 29., to wit:
An act is defined as any bodily movement or a process whereby an
individual puts his organism into motion. In order to produce some change or
effect in the external world, it being unnecessary that the same be actually
produced as the possibility of its production is sufficient. Mere thoughts and
ideas, no matter how immoral or heinous they may be, cannot
constitute a felony because the act must be external, and internal acts
are beyond the sphere of criminal law.
24. Id. at 78-79.
25. G.R. No. 180914, November 24, 2010, 636 SCRA 134, 158.
26. Article 338 of the Revised Penal Code defines simple seduction as the
seduction of a woman who is single or a widow of good reputation, over
twelve but under eighteen years of age, committed by means of deceit.
27. People v. Lizada, supra note 22 at 95.
28. I Feria & Gregorio, supra note 23, at 78-79, which opines that equivocal
preparatory acts remain unpunished unless the Revised Penal Code
penalizes them (e.g., conspiracy and proposal to commit a felony in certain
cases (Article 8, Revised Penal Code); mere possession with intent to use of
instruments or implements adaptable for the commission of counterfeiting
(Article 176, paragraph 2, Revised Penal Code); and possession of
picklocks or similar tools adapted to the commission of robbery (Article 304,
Revised Penal Code).
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29. People v. Mendoza, G.R. Nos. 152589 and 152758, January 31, 2005,
450 SCRA 328, 333.
30. People v. Jalosjos, supra, note 17.
31. People v. Dadulla, G.R. No. 172321, February 9, 2011, 642 SCRA 432,
443; citing People v. Collado, G.R. Nos. 135667-70, March 1, 2001, 353
SCRA 381, 392.
32. People v. Lizada, supra note 22 at 93.
33. Id. at 94.
34. G.R. Nos. 110817-22, June 13, 1997, 273 SCRA 384, 401.
35. Id.
36. Article 2217, Civil Code.
37. Article 2219. Moral damages may be recovered in the following and
analogous cases:
xxx xxx xxx
(3) Seduction, abduction, rape, or other lascivious acts;
xxx xxx xxx
38. People v. Dominguez, Jr., supra, note 25, at 164-165.
39. Id.
40. People v. Maglente, G.R. No. 201445, November 27, 2013, 711 SCRA
142, 161; People v. Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA
436, 459.

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