People v. Caoili (G.R. No. 196342. August 08, 2017)


CASE DIGEST: PEOPLE OF THE PHILIPPINES, PETITIONER, V. NOEL GO CAOILI ALIAS "BOY TAGALOG", RESPONDENT. [G.R. No. 196342, August 08, 2017].

FACTS: The Regional Trial Court (RTC) found Caoili guilty of the crime of Rape by Sexual Assault under paragraph 2 of Article 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353. The victim was a minor, fifteen (15) years of age and the daughter of the herein accused.

Caoili pleaded not guilty to the crime charged. After the pre-trial, trial on the merits ensued.

The victim, AAA, testified that on October 23, 2005, at 7:00p.m., her father, Caoili, sexually molested her at their house located in Barangay JJJ, Municipality of KKK, in the Province of LLL. Caoili kissed her lips, touched and mashed her breast, inserted the fourth finger of his left hand into her vagina, and made a push and pull movement into her vagina with such finger for 30 minutes. AAA felt excruciating pain during and after the ordeal. Against her father's harsh warning not to go out of the house, AAA proceeded to the house of her uncle, BBB, located 20 meters away from their house. When he learned of this, Caoili fetched AAA and dragged her home. He beat and hit her with a piece of wood, and boxed her on the stomach.[12]

The RTC rendered its Decision[20] declaring Caoili guilty of rape by sexual assault. On September 29, 2008, pursuant to a Commitment Order[22] issued by the RTC on August 27, 2008, provincial jail guards escorted Caoili for his confinement at the Davao Prisons and Penal Farm, Panabo, Davao del Norte (Davao Penal Colony).[23]

Thereafter, Caoili filed his appeal before the CA.

The CA held that although Caoili is clearly guilty of rape by sexual assault, what the trial court should have done was to direct the State Prosecutor to file a new Information charging the proper offense, and after compliance therewith, to dismiss the original Information. The appellate court found it "imperative and morally upright" to set the judgment aside and to remand the case for further proceedings pursuant to Section 14, Rule 110,[26] in relation to Section 19, Rule 119[27] of the Rules of Court.

Thereafter, Caoili and the Office of the Solicitor General (OSG) filed their respective petitions for review before this Court: G.R. No. 196342 was instituted by the OSG and G.R. No. 196848 was filed by Caoili. These petitions were ordered consolidated by the Court in its Resolution[28] dated on August 1, 2011.

In G.R. No. 196342, the OSG assails the CA's Decision for not being in accord with the law and established jurisprudence. Their petition was anchored on the following grounds:[29]

HELD: The petitions lack merit. The prosecution has established rape by sexual assault. Accused Noel Go Caoili alias Boy Tagalog is guilty of Lascivious Conduct under Section 5(b) of Republic Act No. 7610. He is sentenced to suffer the penalty of reclusion perpetua, without eligibility of parole.

Article 266-A. Rape, When and How Committed. Rape is committed -R.A. No. 8353 or the "Anti-Rape Law of 1997" amended Article 335, the provision on rape in the RPC, reclassifying rape as a crime against persons and introducing rape by "sexual assault," as differentiated from rape through "carnal knowledge" or rape through "sexual intercourse."[31] Thus, rape under the RPC, as amended, can be committed in two ways.

Through AAA's testimony, the prosecution was able to prove that Caoili molested his own daughter when he inserted his finger into her vagina and thereafter made a push and pull movement with such finger for 30 minutes,[34] thus, clearly establishing rape by sexual assault[35] under paragraph 2, Article 266-A of the RPC. Caoili, however, questions AAA's credibility, arguing that her testimony lacked veracity since she harbored hatred towards him due to the latter's strict upbringing.[36]

It is settled that ill motives become inconsequential if there is an affirmative and credible declaration from the rape victim, which clearly establishes the liability of the accused.[37] AAA was a little over 15 years old when she testified,[38] and she categorically identified Caoili as the one who defiled her. She positively and consistently declared that Caoili inserted his finger into her vagina and that she suffered tremendous pain during the insertion. Her account of the incident, as found by the RTC[39] and the CA,[40] was clear, convincing and straightforward, devoid of any material or significant inconsistencies.
[T]he "assessment of the credibility of witnesses is a domain best left to the trial court judge because of his unique opportunity to observe their deportment and demeanor on the witness stand; a vantage point denied the appellate courts, and when his findings have been affirmed by the CA, these are generally binding and conclusive upon this Court."[42]
When a rape victim's testimony on the manner she was molested is straightforward and candid, and is corroborated by the medical findings of the examining physician, as in this case, the same is sufficient to support a conviction for rape.[44] In a long line of cases,[45] this Court has given full weight and credit to the testimonies of child victims, considering that their youth and immaturity are generally badges of truth and sincerity. Indeed, leeway should be given to witnesses who are minors, especially when they are relating past incidents of abuse.[46]

It is likewise settled that in cases where the rape is committed by a close kin, such as the victim's father, stepfather, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed; moral influence or ascendancy takes the place of violence or intimidation.[47]

Verily, the prosecution has sufficiently proved the crime of rape by sexual assault as defined in paragraph 2 of Article 266-A of the RPC. Caoili, however, cannot be convicted of said crime.

Rape by sexual assault is not subsumed in rape through sexual intercourse.

Caoili can be convicted of rape by sexual assault because this offense is necessarily included in the crime of rape through sexual intercourse.

The variance doctrine, which allows the conviction of an accused for a crime proved which is different from but necessarily included in the crime charged, is embodied in Section 4, in relation to Section 5 of Rule 120 of the Rules of Court, which reads:
Sec. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (Emphasis ours) 
Sec. 5. When an offense includes or is included in another. - An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.
By jurisprudence,[49] however, an accused charged in the Information with rape by sexual intercourse cannot be found guilty of rape by sexual assault, even though the latter crime was proven during trial. This is due to the substantial distinctions between these two modes of rape.[50]

The elements of rape through sexual intercourse are: (1) that the offender is a man; (2) that the offender had carnal knowledge of a woman; and (3) that such act is accomplished by using force or intimidation.[51] Rape by sexual intercourse is a crime committed by a man against a woman, and the central element is carnal knowledge.[52]
On the other hand, the elements of rape by sexual assault are: (1) that the offender commits an act of sexual assault; (2) that the act of sexual assault is committed by inserting his penis into another person's mouth or anal orifice or by inserting any instrument or object into the genital or anal orifice of another person; and that the act of sexual assault is accomplished by using force or intimidation, among others.[53]

In the first mode (rape by sexual intercourse): (1) the offender is always a man; (2) the offended party is always a woman; (3) rape is committed through penile penetration of the vagina; and (4) the penalty is reclusion perpertua.[54]

In the second mode (rape by sexual assault): (1) the offender may be a man or a woman; (2) the offended party may be a man or a woman; (3) rape is committed by inserting the penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) the penalty is prision mayor.[55]

The Court en banc's categorical pronouncement in People v. Abulon,[56] thus, finds application:
In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him.[57]
The language of paragraphs 1 and 2 of Article 266-A of the RPC, as amended by R.A. No. 8353, provides the elements that substantially differentiate the two forms of rape,i.e., rape by sexual intercourse and rape by sexual assault. It is through legislative process that the dichotomy between these two modes of rape was created. To broaden the scope of rape by sexual assault, by eliminating its legal distinction from rape through sexual intercourse, calls for judicial legislation which We cannot traverse without violating the principle of separation of powers. The Court remains steadfast in confining its powers within the constitutional sphere of applying the law as enacted by the Legislature.

In fine, given the material distinctions between the two modes of rape introduced in R.A. No. 8353, the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter.Caoili can be convicted of the crime of lascivious conduct under Section 5(b) of R.A. No. 7610.

R.A. No. 7610 finds application when the victims of abuse, exploitation or discrimination are children or those "persons below 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."[65]
It is undisputed that at the time of the commission of the lascivious act, AAA was fourteen (14) years, one (1) month and ten (10) days old. This calls for the application of Section 5(b) of R.A. No. 7610.[66]

The elements of sexual abuse under Section 5(b) of R.A. No. 7610 are as follows:
(1) The accused commits the act of sexual intercourse or lascivious conduct;
(2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.[67]
The prosecution's evidence has sufficiently established the elements of lascivious conduct under Section 5(b) of R.A. No. 7610.

Caoili's lascivious conduct

The evidence confirms that Caoili committed lascivious acts against AAA when he kissed her lips, touched and mashed her breast, and inserted his finger into her vagina and made a push and pull movement with such finger for 30 minutes. AAA likewise confirmed on cross examination[69] that Caoili molested her. She even recounted that her father threatened her not to tell anybody about the incident. Caoili's acts are clearly covered by the definitions of "sexual abuse" and "lascivious conduct."

It has been settled that Section 5(b) of R.A. No. 7610 does not require a prior or contemporaneous abuse that is different from what is complained of, or that a third person should act in concert with the accused.[71]

The victim's minority

AAA was a child below 18 years old at the time the lascivious conduct was committed against her. Her minority was both sufficiently alleged in the Information and proved.

Influence and coercion

"Influence" is the improper use of power or trust in any way that deprives a person of free will and substitutes another's objective. On the other hand, "coercion" is the improper use of power to compel another to submit to the wishes of one who wields it.[72]

It cannot be denied that AAA, who is only a little over 14 years old at the time the offense was committed, was vulnerable and would have been easily intimidated by an attacker who is not only a grown man but is also someone exercising parental authority over her. Even absent such coercion or intimidation, Caoili can still be convicted of lascivious conduct under Section 5(b) of R.A. No. 7610 as he evidently used his moral influence and ascendancy as a father in perpetrating his lascivious acts against AAA. It is doctrinal that moral influence or ascendancy takes the place of violence and intimidation.[75]

It bears emphasis, too, that consent is immaterial in cases involving violation of Section 5 of R.A. No. 7610.[76] The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to sexual abuse constitutes the offense because it is a malum prohibitum, an evil that is proscribed.[77]

Clearly, therefore, all the essential elements of lascivious conduct under Section 5(b) of R.A. No. 7610 have been proved, making Caoili liable for said offense.

Variance doctrine applied

Caoili had been charged with rape through sexual intercourse in violation of Article 266-A of the RPC and R.A. No. 7610. Applying the variance doctrine under Section 4, in relation to Section 5 of Rule 120 of the Revised Rules of Criminal Procedure, Caoili can be held guilty of the lesser crime of acts of lasciviousness performed on a child, i.e., lascivious conduct under Section 5(b) of R.A. No. 7610, which was the offense proved, because it is included in rape, the offense charged.[78] With the aforesaid provisions, the appellant can be held guilty of a lesser crime of acts of lasciviousness performed on a child, i.e., sexual abuse under Section 5(b), Article III of Republic Act No. 7610, which was the offense proved because it is included in rape, the offense charged.[79]

[5] The Anti-Rape Law of 1997.
[6] AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, AND FOR OTHER PURPOSES. Approved on June 17, 1992.
[7] The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination. and for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefrom; and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence Against Women and Their Children, effective November 5, 2004. (People v. Dumadag, 667 Phil. 664 [2011])
[26] Sec. 14. Amendment or substitution.—x x x
xxxx
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.
[27] Sec. 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.
[28] Rollo (G.R. No. 196848), p. 160.
[29] Rollo (G.R. No. 196342), pp. 27-28.
[30] Rollo (G.R. No. 196848), pp. 21-22.
[31] People v. Pareja, 724 Phil. 759 (2014).
[35] Rape by sexual assault has the following elements: (1) That the offender commits an act of sexual assault; (2) That the act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person's mouth or anal orifice; or (b) By inserting any instrument or object into the genital or anal orifice of another person; (3) That the act of sexual assault is accomplished under any of the following circumstances: (a) By using force and intimidation; (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age or demented. (People v. Soria, 698 Phil. 676 [2012])
[37] Rondina v. People, 687 Phil. 274 (2012).
[39] The RTC's Decision states: "x x x this Court finds the testimony of AAA, who was little over fifteen years old at the time she testified, to be clear, convincing and straightforward, devoid of any material or significant inconsistencies. x x x." Id.
[40] The CA held: "We also find no cogent reason to disturb the findings of the trial court upholding [AAA]'s credibility. x x x." Rollo (G.R. No. 196342), p. 58.
[44] People v. Soria, supra note 35.
[45] Ricalde v. People, 751 Phil. 793, 805 (2015), citing Pielago v. People, 706 Phil. 460 (2013); Campos v. People, 569 Phil. 658, 671 (2008), quoting People v. Capareda, 473 Phil. 301, 330 (2004); People v. Galigao, 443 Phil. 246, 260 (2003).
[46] Ricalde v. People, supra note 45.
[47] People v. Padua, 661 Phil. 366 (2011 ); People v. Corpuz, 597 Phil. 459 (2009).
[48] Embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Court.
[49] People v. Abulon, 557 Phil. 428 (2007); People v. Pareja, supra note 31; People v. Cuaycong, 718 Phil. 633 (2013).
[50] People v. Pareja, supra note 31.
[51] People v. Alfredo, 653 Phil. 435 (2010).
[52] People v. Espera, 718 Phil. 680 (2013).
[53] People v. Alfredo, supra note 51.
[54] People v. Espera, supra note 52, citing People v. Abulon, supra note 49.
[64] Special Protection of Children against Abuse, Exploitation and Discrimination Act.
[65] People v. Chingh, 661 Phil. 208, 223 (2011).
[67] Roallos v. People, 723 Phil. 655 (2013); Caballo v. People, 710 Phil. 792 (2013); People v. Rayon, Sr., 702 Phil. 672 (2013); Garingarao v. People, 669 Phil. 672 (2011); and Olivarez v. CA and People, 503 Phil. 421 (2005).
[70] Rules and Regulations on the Reporting and Investigation of Child Abuse Cases (Done in the City of Manila: October 1993).
[71] Quimvel v. People, G.R. No. 214497, April 18, 2017.
[72] Caballo v. People, supra note 67.
[73] 638 Phil. 161 (2010).
[75] People v. Deligero, 709 Phil. 783 (2013).
[76] Caballo v. People, supra note 67.
[78] See People v. Leonardo, supra note 73.

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