3Republic.

of tbe ~bilippines-
~upreme QCourt
;§manila

FIRST DIVISION

NOTICE

Sirs/Mesdames:

Please take notice that the Court, First Division, issued a

Resolution dated August 17, 2022 which reads as follows:

"G.R. No. 258291 (People of the Philippines v. .XXX1). - This

is an appeal2 assailing the February 3, 2021 Decision3 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 12567, which affirmed with
modification t h e ~ 2018 Decision4 of the Regional Trial
Court (RTC) of _ , 5 Branch 89, finding accused-appellant
XXX guilty beyond reasonable doubt of Robbery with Rape as
defined and penalized under Article 294 of the Revised Penal Code6
(RPC), as amended by Republic Act No. (RA) 7659. 7

Antecedents

In an Information, 8 accused-appellant, together with an

unidentified person with alias "Ulong," was charged with Robbery
with Rape, committed as follows:

- over - eleven (11) pages ...

93

1 Initials were used to identify the accused-appellant pursuant to the Supreme Court Amended
Administrative Circular No. 83-2015 dated September 5, 2017 entitled " Protocols and
Procedures in the Promulgation, Publication, and Posting on the Websites of Decisions, Final
Resolutions, and Final Orders using Fictitious Names/Personal Circumstances."
Rollo, pp. 3-6.
3 Id. at 9-20. Penned by Associate Justice Ramon M. Bato, Jr. and concurred in by Associate
Justices Walter S. Ong and Carlito B. Calpatura.
4 Id. at 22-33 . Penned by Presiding Judge Cecilyn E. Burgos-Villavert.
5 Geographical location is blotted out pursuant to Supreme Court Amended Administrative
Circular No. 83-2015.
6 Entitled "AN Ac r REVISING THE PENAL CODE AN D OTHER PENAL LAWS." Approved:
December 8, 1930.
7 Entitled "AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AM ENDING
FOR THAT PURPOSE THE REVISED PENAL CODE, AS AMENDED, OTHER SPECIAL PENAL LAWS,
AND FOR OTHER PURPOSES" Approved: December 13, 1993.
8 Records, pp.1-2.
RESOLUTION 2 G.R. No. 258291
August 17, 2022

That on or about the 8th day of September, 2015 in -

. , Philippines, the said accused, conspmng together,
confederating with other person whose true name, identity and
other personal circumstances have not as yet been ascertained and
mutually helping each other, with intent to gain, by means of force
upon things, did then and there willfully, unlawfully and
feloniously rob the residence of [AAA] 9 located at

, this City[,] by then and there detaching the jalousie

glass, where they gained entry and once inside, took, robbed and
carried away the following, to wit:

XBOX P 12,000.00
360 .... .......... .... .. ................... .
Fossil 5,000.00
Wristwatch ............... .. .... .. ........ ..
Samsung Duos 1,500.00
Cellphone ...................... .
Digital 300.00
Clock ......... ... ................. . .. .... .
Gold 5,000.00
Bracelet. .............. ..... .... ............ .

All in the total amount of P23,800.00, Philippine Currency

belonging to [BBB], on the occasion of said robbery, accused by
means of force and intimidation, with lewd design commit sexual
assault upon [AAA], a minor, 11 year old, by inserting his penis at
knife point into the mouth of said minor, all against her will and
without her consent, to the damage and prejudice of the said
offended parties.

CONTRARY TO LAW. 10

Version of the Prosecution

The prosecution presented the minor AAA and her mother,

BBB, as witnesses. 11 Their testimonies tended to establish the
following:

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9 " 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 . 76 10, An Act Providing for Stronger Deterrence and Special
Protection against Child Abuse, Exploitation and Discrimination, Providing Penalties for its
Violation, 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 Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-1 0-11-SC, known
as the Ru le on Vio lence against Women and their Children, effective November 15, 2004."
(People v. Dumadag, 667 Phil. 664, 669 [20 I I]).
10 Records, pp. 1-2.
11
Rollo, pp. I 0-1 I.
RESOLUTION 3 G.R. No. 258291
August 17, 2022

At around 4:30 a.m. on September 8, 2015, AAA, who was

sleeping at the second floor of their house, woke up when she felt
someone lay down beside her. 12 Upon opening her eyes, she saw a
familiar face: accused-appellant, their neighbor. 13 Accused-appellant
ordered her to remove her clothes and to stay quiet, otherwise, he will
shoot her with a sumpak and stab her. 14 He then went on top of her,
kissed her lips and breasts, touched her vagina, knelt beside her, and
inserted his penis into her mouth. 15

Afterwards, accused-appellant stood up and dragged AAA

towards the stairs. 16 AAA pretended to trip on a piece of wood to alert
her parents who were sleeping in another room. 17 Upon hearing the
noise, AAA's mother, BBB, woke up and called out her daughter. 18
Accused-appellant got mad at AAA and told her that he will come
back. 19 He then jumped from the stairs. 20

When she went out of their bedroom, BBB saw her daughter
crying. 21 She sensed that there were men inside the house and upon
peeking through the window, she saw "Ulong" (also a neighbor)
running away and carrying their XBOX 360, followed by accused-
appellant.22 She later learned that her daughter had been molested by
accused-appellant and that their XBOX 360, watch, phone, digital
clock, and gold bracelet were missing. 23

Version of the Defense

The defense presented accused-appellant as its lone witness.24

He denied the accusations and claimed that on the morning of the
incident, he was home sleeping with his wife and child. 25

Ruling of the Regional Trial Court

The RTC found accused-appellant guilty of the crime charged,

VlZ.:

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93

12
Id. at I 0.
13 Id.
14 Id.
15
ld.atl0-11.
16
Id. at 11.
11 Id.
is Id.
19 Id.
20 Id.
21 Id.

22 Id.
23 Id.
24
Id. at 11.
25 ld.atll-1 2.
RESOLUTION 4 G.R. No. 258291
August 17, 2022

WHEREFORE, premises considered, the Court finds

accused [XXX] GUILTY beyond reasonable doubt of the crime of
Robbery with Rape and is hereby sentenced to suffer the penalty of
reclusion perpetua, without eligibility [for] parole. Accused is
likewise directed to pay [AAA] the amount of P75,000.00 as civil
indemnity, P75,000.00 as moral damages and P30,000.00 as
exemplary damages, all at the interest rate of six percent (6%) per
annum from the date of finality of this judgment until fully paid.

SO ORDERED.26

The trial court held that all the elements of the Robbery with
Rape are present;2 7 that AAA's testimony is credible; 28 that since
accused-appellant lived near AAA's house, his defenses of denial and
alibi both fail; 29 that the aggravating circumstance of dwelling was
present; 30 and that AAA is entitled to damages. 31

Hence, accused-appellant's appeal before the CA. 32

Ruling of the Court of Appeals

The appellate court affirmed the conviction but for a different

crime, i.e., Sexual Assault under Article 266-A (2) of the RPC in
relation to Section 5 (b) of RA 7610,33 otherwise known as the Special
Protection of Children Against Abuse, Exploitation and
Discrimination Act, viz.:

WHEREFORE, premises considered, the appeal is hereby

DENIED. The Decision dated 28 August 2018 of the Regional
Trial Court of , Branch 89 in Criminal Case No. ■
■■-15-08255-CR is AFFIRMED with MODIFICATION in that
accused-appellant [XXX] is hereby found GUILTY beyond
reasonable doubt of the crime of Sexual Assault under Article 266-
A (2) of the Revised Penal Code in relation to Section 5 (b) of
Republic Act No. 7610. Consequently, the accused-appellant is
sentenced to suffer the indeterminate penalty 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. The accused-appellant is
ordered to pay [AAA] the amounts of PS0,000.00 as civil
indemnity, PS0,000.00 as moral damages, and PS0,000.00 as
exemplary damages.

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93

26
Id. at 33.
27
Id. at 24-3 I.
28 Id. at 3 1.
29
Id. at 31-32.
30
Id. at 32.
31
Id. at 32-33.
32
CA rolio, p. 12.
33 Entitled " SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND
OlSCRIMINATI0N A CT, R EPUBLIC A CT No. 761 0." Approved: June 17, 1992.
RESOLUTION 5 G.R. No. 258291
August 17, 2022

Legal interest of six percent (6%) per annum is imposed on

all damages awarded from the date of finality of this Decision until
fully paid.

SO ORDERED. 34

The CA held that the prosecution was unable to establish

Robbery since BBB merely pointed to "Ulong" (not accused-
appellant) who took the XBOX 360;35 that there was nothing on
record to prove conspiracy regarding the supposed taking; 36 that there
was no overt act on the part of accused-appellant which would
indicate intent to commit Robbery; 37 that no missing item was
recovered from him; 38 but that nevertheless, the prosecution was able
to prove the crime of Sexual Assault through AAA's testimony. 39

Thus, this appeal. 40

Issue

Did the appellate court err in convicting accused-appellant of

Sexual Assault under Article 266-A (2) of the RPC in relation to
Section 5 (b) of RA 7610?

Our Ruling

The appeal lacks merit.

Accused-appellant cannot be
convicted of Robbery with
Rape

The special complex crime of Robbery with Rape is penalized

under Article 294 of the RPC, as amended by RA 7659, viz.:

Art. 294. Robbery with violence against or intimidation of

persons - Penalties. -Any person guilty of robbery with the use
of violence against or intimidation of any person shall suffer:

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93

34 Rollo, p. 19.
35
ld. at 13-15 .
36 Id.
31 Id.
38 Id.
39
Id. at 15-19.
40 Id . at 3-6.
RESOLUTION 6 G.R. No. 258291
August 17, 2022

1. The penalty of reclusion perpetua to death, when by

reason or on the occasion of the robbery, the crime of homicide
shall have been committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson.
(Emphasis supplied)

The crime contemplates a situation where the original intent of

the accused was to take, with intent to gain, personal property
belonging to another, and Rape was committed on the occasion
thereof or as an accompanying crime. 41 Its elements are (1) the taking
of personal property is committed with violence or intimidation
against persons; (2) the property taken belongs to another; (3) the
taking is characterized by intent to gain or animus lucrandi; and (4)
the Robbery is accompanied by Rape,42 which is understood to be in
its traditional concept. 43

Here, accused-appellant cannot be convicted of Robbery with

Rape for the following reasons:

First, there is nothing on record to show that the original intent

of accused-appellant was to take the personal property of the family.
As previously held by the Court, the true intent of the accused in
Robbery with Rape must be to take, with intent to gain, the property
of another, and Rape must be committed only as an accompanymg
crime. 44

Second, the element of taking the property with violence or

intimidation is lacking. While AAA' s testimony shows that she was
sexually abused by accused-appellant through the use of force and
intimidation, there is no evidence to indicate that the taking of the
missing items was done with violence or intimidation, either against
BBB or AAA. Again, for a successful prosecution of Robbery with
Rape, the element of taking the personal property with violence or
intimidation against persons must be present. 45

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93

41 People v. Spinilla, G.R. No. 224922, October 14 , 2020, citing People v. Bongos, 824 Phil.
I004, IO 12 (20 I 8).
42 People v. Coritana, G.R. No. 209584, March 3, 202 1, citing People v. Romobio, 820 Phil. 168,
184(2017).
43 See People v. Barrera, G.R. No. 230549, December I, 2020, where the Court held that the
penalty for Robbery w ith Rape, wh ich is reclusion perpetua to death, cannot be imposed when
the Rape was committed through Sexual Assault considering that upon the passage of Republic
Act No. 7659, Rape was limited only to instances of organ penetration.
44
Id., citing People v. Romobio, 820 Phil. 168, 184- I 85 (2017).
45 See People v. Coritana, supra.
RESOLUTION 7 G.R. No. 258291
August 17, 2022

Third, the prosecution failed to establish conspiracy to rob

between accused-appellant and "Ulong." It must be remembered that
it was "Ulong," not accused-appellant, who was seen by BBB
carrying the XBOX 360. Thus, before accused-appellant could be held
liable for the supposed taking, the prosecution must first prove that he
conspired with "Ulong" to rob the family. The prosecution must show
that accused-appellant performed an overt act in pursuance or in
furtherance of the conspiracy, which may consist of active
participation in the actual commission of the crime itself, or of moral
assistance to "Ulong" by moving him to execute or implement the
criminal plan. 46

However, the prosecution failed to point to any overt act on the

part of accused-appellant evincing his intent to take the XBOX 360
and the rest of the missing items. Neither were these items recovered
from him. Hence, he cannot be held liable for the supposed taking. It
must be stressed that mere presence at the crime scene does not in
itself amount to conspiracy. 47 There must be an overt act in pursuance
or in furtherance of the conspiracy. 48

Fourth, the penalty for Robbery with Rape, which is reclusion

perpetua to death, cannot be imposed on accused-appellant
considering that the Rape of AAA was committed through Sexual
Assault and not by Sexual Intercourse. As held in People v. Barrera, 49
the penalty for Robbery with Rape cannot be imposed when the Rape
was committed through Sexual Assault considering that upon the
passage of RA 7659, Rape was limited only to instances of organ
penetration, viz.:

In the same vein, following legislative intent in the

passage of R.A. No. 7659, the penalty of reclusion perpetua to
death for the special complex crime of robbery and rape
should be limited to instances when rape is accomplished
through sexual intercourse or "organ penetration." The penalty
should not be unduly extended to cover sexual assault considering
that the acts punishable under such mode were not yet recognized
as "Rape" but as "Acts of Lasciviousness" at the time the severe
penalty of death was imposed. All the more, to repeat for the sake
of emphasis, as even after the inclusion of sexual assault in the

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93

46 See People v. Salga, 836 Phil. 1188, 1206 (2018), citing Ladonga v. People, 492 Phil. 60, 71
(2005).
47 Id . at 1209, citing People v. Vda. de Ramos, 451 Phil. 214, 226 (2003).
48 Id. at 1206, citing Ladonga v. People, supra.
49 Supra.
RESOLUTION 8 G.R. No. 258291
August 17, 2022

definition of rape by R.A. No. 8353, Congress deliberations show

that the law never intended to redefine the traditional concept of
rape. Rather, the law merely expanded the definition of the crime
of rape, with the intent of maintaining the existing distinction
between the two modes of commission.

xxxx

The Court cannot simply presume that with the passage

of R.A. No. 8353, rape as a component of the special complex
crime of robbery with rape includes sexual assault. With respect
to penal statutes, the Comt cannot rest on mere deductions.
Likewise, "it is not enough to say that the legislature intended to
make a certain act an offense." The penal statute must clearly and
specifically express that intent. In order for an accused to be
convicted under a penal statute, the latter must definitively
encompass and declare as criminal the accused's act prior to its
commission. "Whatever is not plainly within the provisions of a
penal statute should be regarded as without its intendment."

In the case at bar, R.A. No. 7659, insofar as it imposes

the penalty of reclusion perpetua to death for the special
complex crime of robbery with rape, is bereft of any statement
to suggest that it contemplates any and all forms of rape which
may subsequently be defined. Thus, the law which imposes a
harsher penalty should not be extended to include sexual assault,
which was recognized as rape only after its passage. so (Citations
omitted, emphasis supplied)

Nevertheless, accused-appellant must be held liable for

molesting AAA.

Accused-appellant is guilty of
Sexual Assault under Article
266-A (2) of the RPC in
relation to Section 5 (b) of
RA 7610

Under Article 266-A (2) of the RPC, as amended, Rape may be

co1TI1nitted as follows:

A11. 266-A. Rape: When and How Committed. - Rape is

committed-

xxxx

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93

so Id.
RESOLUTION 9 G.R. No. 258291
August 17, 2022

2) By any person who, under any of the circumstances

mentioned in paragraph I hereof, shall commit an act of sexual
assault by inserting his penis into another person's mouth or anal
orifice, or any instrument or object, into the genital or anal orifice
of another person.

The gravamen of the crime is the insertion of the penis into

another person's mouth or anal orifice, or any instrument or object,
into another person's genital or anal orifice.51

Here, as c01Tectly determined by the appellate court, the

prosecution was able to show that accused-appellant inserted his penis
into AAA's mouth. AAA categorically testified that on the early
morning of the incident, accused-appellant went on top of her, kissed
her lips and breasts, touched her vagina, knelt beside her, and inserted
his penis into her mouth. 52 It is settled that testimonies of child
victims, such as AAA who was only 11 years old when she was
molested and 12 when she testified, deserve full weight and
credence, 53 especially since her testimony is natural, convincing, and
consistent with human nature. 54

On the other hand, as against AAA's categorical,

straightforward, and spontaneous testimony, all accused-appellant
could offer is bare denial and alibi. He did not even allege that he was
so far away from AAA's house that he could not have committed the
crime. The Court has repeatedly held that alibi and denial cannot
prevail over the positive and categorical testimony and identification
of the complainant. 55 Absent any shred of evidence to corroborate his
defense, his denial and alibi must be rejected.

Penalty and damages

In People v. Tulagan, 56 the Court held that when the acts

constituting Sexual Assault are committed against a victim under 12
years of age, as in here, the nomenclature of the offense is "Sexual

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93

51 People v. .,\".:XX, G.R. No. 240750, June 21, 2021, citing Pie/ago v. People, 706 Phil. 460, 47 1
(2013).
52 TSN, June 6, 2016, pp. 9-10.
53 People v. )(XX, G.R. No. 2 18277, November 9, 2020, citing People v. Sa/aver, 839 Phil. 90,
103 (20 18).
54 See People v. Pascua, 462 Phil. 245, 252 (2003), citing People v. Biong, 450 Phil. 432, 446
(2003).
55 See People v. BBB, G.R. No. 248023, June 17, 2020, citing People v. Batalla, G.R. No.
234323, January 7,20 19.
56 G.R. No. 227363, March 12, 20 19.
RESOLUTION 10 G.R. No. 258291
August 17, 2022

Assault under paragraph 2, Article 266-A of the RPC in relation to

Section 5 (b) of R.A. No. 7610." 57 The penalty for the crime
is reclusion temporal in its medium period. 58

In determining the imposable penalty, the aggravating

circumstance of dwelling, which was alleged in the Information,
should be appreciated since the offense of Sexual Assault was
committed in the dwelling of the offended party, and the latter has not
given any provocation. 59 This warrants the imposition of the penalty
prescribed in its maximum period. 60 Hence, applying the
Indeterminate Sentence Law, 61 the maximum term should be
anywhere within the maximum period of reclusion temporal medium
or 16 years, 5 months and 10 days to 17 years and 4 months, and the
minimum term within the range of 12 years and 1 day to 14 years and
8 months. 62

As for the damages, accused-appellant should pay AAA civil

indemnity, moral damages, and exemplary damages of P50,000.00
each pursuant to People v. Tulagan. 63 Further, accused-appellant
should pay the fine of Pl 5,000.00 pursuant to Section 31 (f), Article
XII of RA 7610. 64

WHEREFORE, the appeal is DISMISSED. The February 3,

2021 Decision of the Court of Appeals in CA-G.R. CR-HC No. 12567
is AFFIRMED with the MODIFICATION that accused-appellant
XXX is SENTENCED to suffer the indeterminate penalty of 14 years
and eight months, as minimum, 17 years and 4 months, as maximum.
He is also ORDERED to pay AAA civil indemnity, moral damages,
and exemplary damages of P50,000.00 each, with interest at the rate
of 6% per annum from the date of finality of this Resolution until
fully paid, and to pay the fine of Pl5,000.00.

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93

57 Id.
58 RA 7610, Art. Ill , Sec. 5 (b).
59 People v. Barrera, supra note 43 (citations omitted).
60 REVISED PENAL CODE, Art. 64 (3).
61 Entitled "AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR A LL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO
CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR
OTHER PURPOSES." Approved: December 5, 1933.
62 REVISED PENAL CODE, Art. 64 ( 1) . See also People v. Barrera, supra note 43 (citations
omitted).
63
Supra.
64
See People v. Pueyo, G.R. No. 192327, February 26, 2020 (citations omitted).
RESOLUTION 11 G.R. No. 258291
August 17, 2022

The Office of the Solicitor General's manifestation in lieu of

supplemental brief, pursuant to the Resolution dated March 9, 2022;
and the accused-appellant's manifestation (in lieu of supplemental
brief), pursuant to the Resolution dated March 9, 2022, are both
NOTED.

SO ORDERED."

By authority of the Court:

Divisio Clerk of Cou.

by:

MARIA TERESA B. SIBULO

Deputy Division Clerk of Court
93
SEP O1 202?

The Solicitor General Court of Appeals (x)

134 Amorsolo Street, Legaspi Vi llage Manila
1229 Makati City (CA-G.R. CR-HC No. 12567)

XXX The Hon. Presiding Judge

Accused-Appel lant Regional Trial Court, Branch 89
c/o The Director General 1100 Quezon City
Bureau of Corrections (Crim. Case No. R-QZN-1 5-08255-CR)
I 770 Muntinlupa City
PUBLIC ATTORNEY'S OFFICE
Special and Appealed Cases Service
Counsel for Accused-Appellant
5/F, DOJ Agencies Building
NIA Road cor. East Avenue, Diliman
I IO I Quezon City

The Director General

Bureau of Corrections
I 770 Muntinlupa City

Public Information Office (x)

Library Services (x)
Supreme Court
(For uploading pursuant to A.M.
No. 12-7-1-SC)

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