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VOL. 381, APRIL 22, 2002 435

People vs. Cana
*
G.R. No. 139229. April 22, 2002.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ESMERALDO CANA Y DEL VALLE alias “SMITH”,
accused-appellant.

Criminal Procedure; Evidence; When the witness is a child of

tender years, it is proper for the court to allow leading questions as
it is usually difficult for a child of such age to state facts without
prompting or suggestion.—As a general rule, leading questions
are not allowed. However, we have held that when the witness is
a child of tender years, it is proper for the court to allow leading
questions as it is usually difficult for a child of such age to state
facts without prompting or suggestion. Leading questions are
necessary to coax the truth out of their reluctant lips. Here, the
decision of the trial court to allow leading questions to Jovelyn
was justified, as she was evidently young and unlettered, making
the recall of events difficult, if not uncertain.
Criminal Law; Rape; Evidence; Alibi; For alibi to prosper, the
requirements of time and place must be strictly met.—Appellant’s
main defense of alibi and denial, i.e., that he was then at the
seashore catching shrimps in the evening just before the alleged
rape, is equally unavailing. For alibi to prosper, the requirements
of time and place must be strictly met. It is not enough to prove
that the accused was somewhere else when the offense was
committed. It must likewise be shown that he was so far away
that it was impossible for him to have been physically present at
the place of the crime or its immediate vicinity at the time of its
commission.
Same; Same; Same; There is no rule providing that rape can
only be committed in seclusion.—The presence of appellant’s son
in the crime scene, even if true, would not negate the possibility of
rape. It would not logically follow that because he could have
heard or seen the assault, rape could not take place. As previously
held, rape happens even in the same room where other family
members also slept. There is no rule providing that rape can only
be committed in seclusion.

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Same; Same; Death Penalty; Failure to allege the relationship

of step-parentage necessarily excludes the offense from the coverage
of R.A. No. 7659.—The trial court imposed the death penalty
because the victim, Jovelyn Listana, was only ten (10) years old at
the time of the commission of the offense and the offender is her
stepparent. But we must stress that if

______________

* EN BANC.

436

436 SUPREME COURT REPORTS ANNOTATED

People vs. Cana

this was the case, both circumstances of the victim’s minority and
her relationship with the accused should have been alleged in the
information, pursuant to the Revised Rules of Criminal
Procedure, as qualifying circumstances. Here, the information
failed to mention the step-relationship between appellant and the
victim, i.e. that of stepfather and stepdaughter. Following People
vs. Balacano, failure to allege the relationship of step-parentage
necessarily excludes the offense from the coverage of R.A. No.
7659. Moreover, we find that appellant’s live-in partner,
Josephine, was only the victim’s aunt and not her real mother.

AUTOMATIC REVIEW of a decision of the Regional Trial

Court of Daet, Camarines Norte, Br. 38.

The facts are stated in the opinion of the Court.

      The Solicitor General for plaintiff-appellee.
      Public Attorney’s Office for accused-appellant.

QUISUMBING, J.:
1
Before us for automatic review is the decision dated
December 28, 1998, of the Regional Trial Court of
Camarines Norte, Branch 38, in Criminal Case No. 9000,
convicting appellant Esmeraldo Cana y del Valle of rape,
and sentencing him to death as well as to pay the victim
the amount of P50,000 as civil indemnity.
The information filed against appellant reads as follows:

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That on the early morning of January 28, 1997 at Sitio Mantigbe,

Barangay Calangcawan Sur, municipality of Vinzons, province of
Camarines Norte, and within the jurisdiction of this Honorable
Court, the said accused, did then and there wilfully, unlawfully,
and feloniously, by means of force, violence, and intimidation, lie
and had carnal knowledge of one Jovelyn Lestana, a ten (10) year
old girl against her will and consent to the damage and prejudice
of herein victim.
2
CONTRARY TO LAW.

______________

1 Rollo, pp. 18-26.

2 Records, p. 1.

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VOL. 381, APRIL 22, 2002 437

People vs. Cana

On May 19, 1997, appellant entered a plea of not guilty.

Thereafter, trial on the merits ensued.
The 3 prosecution presented as witnesses Jovelyn
Listana, the complainant; Dr. 4Marcelito Abas, the
examining doctor; and5 Belen Senes, president of Purok 6
in Barangay Mantigbi.
Complainant JOVELYN 6
LISTANA testified that she
was ten (10) years old. She lived with appellant, the live-in7
partner of her aunt Josephine whom she calls “Mama”. 8
She babysat for their child and ran errands for them. She
recounted that one day, the date of which she could not
recall since
9
she was sexually abused many times by
appellant, he undressed her, removed her panty, placed 10
himself on top of her, and inserted his penis in her vagina.
She felt pain and tried to stop him but he 11continued. Only
when she cried of pain did appellant stop. She explained
that12she could not stop him because he threatened to hang
her. He also threatened her against telling anyone. Later,13
whenever her aunt was in Manila, which was often, he
would rape her.
According to Jovelyn, she narrated
14
her ordeal first to her
Ate Fe and later her Ate Belen. Her Ate Helen, then the
president of their “purok”, accompanied her to their
barangay captain, who in turn reported the15 matter to the
police station of Vinzons, Camarines Norte. She executed
an affidavit in the presence of DSWD

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3 Sometimes “Lestana” in other parts of the records.
4 Also spelled as “Senis” in the records.
5 Sometimes “Mantigbe” in other parts of the records.
6 TSN, June 19, 1997, p. 2.
7 Id., at 19.
8 Id., at 3-4.
9 Id., at 7.
10 Id., at 5-6.
11 Id., at 6.
12 Id., at 8.
13 Id., at 9.
14 Id., at 10.
15 Id. at 11-12.

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438 SUPREME COURT REPORTS ANNOTATED

People vs. Cana
16
worker Gemma Orcajada. She was then brought to the
Camarines 17Norte Provincial Hospital for genital
examination.
On cross-examination, she recalled that appellant
oftentimes scolded and punished her for her mistakes in
doing household18
chores and that she resented appellant for
punishing her. She said that appellant’s penis penetrated
her vagina19easily as he had sexually molested her many
times over.
According to her, after the first
20
time that he raped her,
her urine had traces of blood. 21 She claims that appellant
abused her anytime of the day. The contents of the Social
Case Study
22
Report of the DSWD were admitted by the
defense.
DR. MARCELITO ABAS, a physician at the Camarines
Norte Provincial Hospital, testified that he medically
examined the victim23who, he said, was ten years old, on
February 3, 1997. He found “superficial hymenal
laceration in her genitalia at 7:00 and 10:00 o’clock; small
opening of the vaginal orifice measuring about 0.5 cm., 24
diameter more or less; negative for any physical injuries.”
In his opinion, there was penetration of the victim’s vagina
by a penis, and the laceration of 25
the hymen was due to
sexual intercourse or defloration.
BELEN SENES, nicknamed Ate Belen, testified that she
was the president of Purok 6, Barangay Mantigbi,
Calangcawan Sur, 26
Vinzons, Camarines
27
Norte. She knew
both the victim and appellant. She recounted that on

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January 31, 1997, sometime between 9:00 and 11:00 A.M.,

Jovelyn Listana told her that she had been

______________

16 Sometimes spelled as Gema Orcahada in other parts of the records.

17 Supra, note 6 at 13.
18 Id.,at 17-18.
19 Id., at 18.
20 Id., at l5.
21 TSN, June 25, 1997, p. 4.
22 TSN, June 18, 1997, p. 16.
23 Id., at 4.
24 RTC Records, p. 6.
25 Supra, note 22 at 12.
26 TSN, July 29, 1997, pp. 3-4.
27 Id., at 6.

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VOL. 381, APRIL 22, 2002 439

People vs. Cana
28
raped by appellant. Belen 29
reported the matter to
Barangay Captain 30Dominico Mago, Jr., who advised her
to go to the DSWD. Since it was a Friday afternoon, Belen
took custody of Jovelyn who had asked Belen not to bring 31
her back to appellant because it was he who raped her.
Belen narrated that appellant later on went to her house
looking for Jovelyn. He said he wanted to talk32to her and
added that Jovelyn would lie on many things. Appellant
talked to Jovelyn,33who refused to go with him because she
was afraid of him. At first, he forced her to come with him
but Jovelyn cried and held on to the fence, then34reached for
Belen, and begged not to be given to appellant. According
to Belen,
35
appellant left after she refused to give Jovelyn to
him.
The next morning, Belen recalled seeing appellant in a
tricycle with a pig and, suspecting he would escape, she
hurriedly went to the PNP. However, she 36was instead
asked to bring Jovelyn to the PNP office. The police
interrogated Jovelyn, then went to Daet to look for
appellant; they 37found him selling a pig and then brought
him to Vinzons. Belen said she 38
turned over Jovelyn to the
PNP and later, to the DSWD. 39
According to her, Jovelyn
was then nine (9) years old.
The defense presented as witnesses: (1) Tito Ochoa,
appellant’s landlord; (2) Gerwin Cana, appellant’s son; (3)
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Gracita Vasquez, appellant’s sister; and (4) appellant

himself.

______________

28 Id., at 5-6.
29 Sometimes spelled as Domingo in other parts of the records.
30 TSN, July 29, 1997, p. 7.
31 Id., at 8.
32 Id., at 9.
33 Id., at 10.
34 Id., at 11.
35 Ibid.
36 Id., at 12.
37 Id., at 13.
38 Ibid.
39 Ibid.

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440 SUPREME COURT REPORTS ANNOTATED

People vs. Cana

TITO OCHOA testified that he knew Jovelyn, having40seen

her with her grandmother at appellant’s house. He
observed that Jovelyn was fond of climbing coconut trees
and that every
41
time she did, appellant would beat her up
with a twig.
42
So, she fled the house and at times would not
return.
Twelve-year old GERWIN CANA stated 43that he knew
Jovelyn, who lived in their house for a year. He narrated
that appellant often scolded and whipped Jovelyn for 44
her
various mistakes such 45as stealing appellant’s money and
climbing coconut trees. Twice, he saw her embrace a46 dog,
play with its organ, and insert it in her vagina. He
confirmed that Jovelyn would fight back whenever
appellant beat her up.
On cross-examination, Gerwin testified that he told
appellant about Jovelyn’s habit of toying with the dog’s
penis. Appellant whipped Jovelyn
47
and warned her not to
repeat it, and killed the dog.
GRACITA VAZQUEZ testified 48
that she knew Jovelyn as
her sister-in-law’s daughter. During a family reunion at
appellant’s house on November
49
2, 1994, she noticed Jovelyn
fondling the dog’s penis. She told appellant about this, but
he answered 50
that Jovelyn got mad at him whenever he
scolded her.

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Appellant ESMERALDO CANA testified that on the

night of January 27, 1997, just before the alleged offense,
he was at the seashore
51
catching shrimps and that he went
home at midnight. He saw Jovelyn sleeping at home with
legs apart, and wearing a

______________

40 TSN, November 6, 1997, p. 3.

41 Id., at 3-4.
42 Id., at 4-5.
43 TSN, March 18, 1998, p. 5.
44 Id., at 6-7.
45 Id., at 7.
46 Id., at 8-9, 11, 14.
47 Id., at 27-28.
48 TSN, May 5, 1998, p. 8.
49 Ibid.
50 Id., at 9.
51 TSN, September 1, 1998, p. 5.

441

VOL. 381, APRIL 22, 2002 441

People vs. Cana
52
torn panty that53
revealed her vagina. He touched her
vagina twice. This awakened the complainant who, he 54
claimed, was eleven years old. She then ran to the sala.
His two sons were also awakened and55 he did not pursue
her anymore but went to sleep instead.
During cross-examination, he denied inserting his penis
inside the complainant’s genitalia. He said that he56only
wanted to tease complainant by touching her vagina, but
admitted that doing so got him aroused 57
to the extent that
he inserted his middle finger in it. He admitted that
during his arrest, he did not tell the police or execute
58
an
affidavit stating that he merely touched her vagina.
On December 28, 1998, the trial court handed down its
decision as follows:

“WHEREFORE, finding the accused Esmeraldo Cana GUILTY

beyond reasonable doubt of the crime of Rape as defined under
Art. 335 of the Revised Penal Code, as amended by R.A. 7659, he
is hereby sentenced to suffer the extreme penalty of DEATH.
Further, he is ordered to indemnify the offended party the
amount of P50,000.00 as indemnity.
59
SO ORDERED.”

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Hence, this appeal assigning the following errors allegedly

committed by the trial court:

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT

THE GUILT OF THE ACCUSED FOR THE CRIME CHARGED
WAS PROVEN BY THE PROSECUTION BEYOND
REASONABEE DOUBT.

______________

52 Id., at 6.
53 Id., at 6-7.
54 Id., at 7.
55 Ibid.
56 Id., at 21.
57 Id., at 22-23.
58 Id., at 25-28.
59 Rollo, p. 57.

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People vs. Cana

II

GRANTING THAT ACCUSED-APPELLANT IS GUILTY, THE

TRIAL COURT GRAVELY ERRED IN IMPOSING THE
SUPREME PENALTY OF DEATH DESPITE THE ABSENCE OF
ANY CIRCUMSTANCE TO QUALIFY THE CRIME OF SIMPLE
60
RAPE.

In essence, the pertinent issues raised by appellant concern

(1) the propriety of leading questions addressed to the
complainant; (2) the sufficiency of the prosecution’s
evidence to prove appellant’s guilt for the crime of rape;
and (3) the correctness of the penalty imposed on him.
First, on the procedural issue. Appellant imputes
partiality to the trial court for allowing the prosecution to
ask Jovelyn leading questions on direct examination. He
claims that were it not for these improper questions, the
prosecution could not have established the crime charged.
As a general rule, leading questions are not allowed.
However, we have held that when the witness is a child of
tender years,
61
it is proper for the court to allow leading
questions as it is usually difficult for a child of such
62
age to
state facts without prompting or suggestion. Leading
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questions are necessary to coax the truth out of their

reluctant lips. Here, the decision of the trial court to allow
leading questions to Jovelyn was justified, as she was
evidently young and unlettered, making the recall of events
difficult, if not uncertain. Her cross-examination is quite
instructive on this matter, to wit:

______________

60 Id., at 37-38.
61 RULES OF COURT, Rule 132, Section 10 provides:

SEC. 10. Leading and misleading questions.—A question which suggests to the
witness the answer which the examining party desires is a leading question. It is
not allowed, except:
xxx
(c) When there is difficulty in getting direct and intelligible answers from a
witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-
mute;
x x x (Emphasis supplied).

62 People vs. Losano, G.R. No. 127122, 310 SCRA 707, 721 (1999).

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VOL. 381, APRIL 22, 2002 443

People vs. Cana

ATTY. BARANDON:
Q: Miss witness, do you know how to write?
A: I do not know how to write.
Q: You do not know how to write your name?
A: I know, Sir.
Q: Do you know how to read?
A: No, Sir.
Q: Even in Tagalog you do not know how to read, Miss
Witness?
A: I do not know.
Q: Is it not true Miss Witness that you are in Grade I, did
you finish Grade I?
A: No, Sir.
Q: Did your teacher [teach] you how to read and write?
A: I was taught.
COURT:

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  The Court take (sic) notice that in Grade I you will not
learn how
63
to read and write fully. That is of judicial
notice.

Nevertheless, after careful reading of the records, we find

that even if the alleged leading questions were not allowed,
Jovelyn’s testimony appears credible and comprehensive.
She gave a candid, plain, and straightforward account on
how she was raped by appellant. She spoke in a manner
reflective of honest and unrehearsed testimony. Moreover,
when it comes to the issue of credibility, this Court
generally defers64
to the assessment and evaluation given by
the trial court because of its unique position to observe
the demeanor of the witnesses. In this case, we reiterate
the truism that it is highly inconceivable that a young
barrio lass, inexperienced with the ways of the world,
would fabricate a charge of defloration, undergo a medical
examination of her private parts, subject herself to public
trial, and tarnish her family’s honor and reputation, unless
she was motivated by a potent65desire to seek justice for the
wrong committed against her.

______________

63 TSN, June 19, 1997, pp. 16-17.

64 People vs. Babera, G.R. No. 130609, 332 SCRA 257, 266 (2000).
65 People vs. Reynaldo, G.R. No. 116305, 291 SCRA 701, 712-713 (1998).

444

444 SUPREME COURT REPORTS ANNOTATED

People vs. Cana

The element of force and intimidation used in committing

the offense was sufficiently established. First, appellant
threatened
66
to hang Jovelyn if she resisted his sexual
assaults. Then he repeatedly threatened
67
her against
telling anyone about the molestation. Note that appellant
claimed, however, that complainant was just about the
same age 68as his son Gerwin who, he said, was about 11
years old. Recall that the prosecution witnesses testified
she was 10 years old at the time of the offense, as alleged
by the prosecution. Thus, we find that complainant was
less than 12 years old, and when the offended party is
below 12 years old, as in this case, even though force or
intimidation is not present, carnal knowledge of the woman
is, by definition, rape. [See Revised Penal Code as
amended, Art. 335 (3), but now Art. 266-A, par. (1) (d)].
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According to appellant, the trial court failed to

appreciate the testimony of his son, Gerwin Cana. But his
testimony took a bizarre turn by suggesting that Jovelyn’s
defloration was caused by the insertion of a dog’s penis into
her vagina and by climbing coconut trees. This suggestion,
however, was contradicted by Dr. Abas, who testified that
Jovelyn’s defloration could have
69
only been caused by the
insertion of a person’s penis.
Appellant’s main defense of alibi and denial,
70
i.e., that he
was then at the seashore catching shrimps in the evening
just before the alleged rape, is equally unavailing. For alibi
to prosper, the
71
requirements of time and place must be
strictly met. It is not enough to prove that the accused
was somewhere else when the offense was committed. It
must likewise be shown that he was so far away that it was
impossible for him to have been physically present at the
place of the crime
72
or its immediate vicinity at the time of
its commission. No such showing was made here by
appellant.

______________

66 Supra, note 63 at 8.
67 Ibid.
68 TSN, June 4, 1998, p. 8. Gerwin is also spelled in TSN as “Jerwin”.
69 TSN, June 18, 1997, 11-12.
70 TSN, September 1, 1998, p. 5.
71 People vs. Antonio, G.R. No. 118311, 303 SCRA 414, 429 (1999).
72 People vs. Verde, G.R. No. 119077, 302 SCRA 690, 705 (1999).

445

VOL. 381, APRIL 22, 2002 445

People vs. Cana

In another bizarre twist, appellant insisted he merely

“touched her private parts with the use of the middle
finger”. This admission was touted as a badge of
truthfulness. Juxtaposed against the testimony of the 10-
year-old victim that he ravished her on several occasions,
his claim to honesty is woefully pathetic. His lewd design
on her surfaced clearly during cross-examination.
According to his testimony, when he saw the complainant
with legs
73
apart, wearing a torn panty that revealed her
vagina, he caressed complainant’s vagina not once but
twice. He got excited as he did,74
so he inserted his middle
finger inside her private parts.

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The presence of appellant’s son in the crime scene, even

if true, would not negate the possibility of rape. It would
not logically follow that because he could have heard or
seen the assault, rape could not take place. As previously
held, rape happens even 75in the same room where other
family members also slept. There is no 76 rule providing that
rape can only be committed in seclusion.
To sum up, appellant’s protestation of innocence is
hollow. The prosecution’s evidence of his guilt is simply
overwhelming.
However, while the Court agrees with the finding
concerning appellant’s guilt, we cannot sustain the death
sentence imposed by the trial court. Appellant was
convicted under Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659, which reads in part:

The death penalty shall also be imposed if the crime of rape is

committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and

the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common law spouse of the parent of the
victim. x x x

The trial court imposed the death penalty because the

victim, Jovelyn Listana, was only ten (10) years old at the
time of the

______________

73 TSN, September 1, 1998, p. 20.

74 Id., at 22-23.
75 People vs. Perez, G.R. No. 122764, 296 SCRA 17, 30 (1998).
76 People vs. Talaboc, G.R. No. 103290, 256 SCRA 441, 449 (1996);
People vs. Catoltol, Sr., G.R. No. 122359, 265 SCRA 109, 118 (1996).

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446 SUPREME COURT REPORTS ANNOTATED

People vs. Cana

commission77 of the offense and the offender is her

stepparent. But we must stress that if this was the case,
both circumstances of the victim’s minority and her
relationship with78the accused should have been alleged in
the information, pursuant
79
to the Revised Rules of
Criminal Procedure, as qualifying circumstances. Here,
the information failed to mention the step-relationship
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between appellant and the victim, i.e. that of stepfather

80
and stepdaughter. Following People vs. Balacano, failure
to allege the relationship of step-parentage necessarily
excludes the offense from the coverage of R.A. No. 7659.
Moreover, we find that appellant’s live-in partner,
Josephine,
81
was only the victim’s aunt and not her real
mother. Given these premises, legally speaking, the
victim could not claim that appellant is her step-father. It
follows that appellant could not be declared guilty of
qualified rape but only of statutory rape punishable by
reclusion
82
perpetua under Article 335 of the Revised Penal
Code.

______________

77 Rollo, p. 57.
78 People vs. De Villa, G.R. No. 124639, February 1, 2001, p. 8, 351
SCRA 25.
79 Rule 110, Revised Rules of Criminal Procedure:

Sec. 8. Designation of the offense.—The complaint or information shall state the

designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances.
If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.
Sec. 9. Cause of the accusation.—The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used
in the statute but in terms sufficient to enable a person of common understanding
to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.

80 G.R. No. 127156, 336 SCRA 615, 630 (2000).

81 Supra, note 6.
82 See RPC as amended, before R.A. 8353, the Anti-Rape Law of 1997,
took effect on October 22, 1997.

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People vs. Cana

On the matter of damages, this Court notes that the trial

court awarded P50,000 as indemnity. In addition to this
award the victim, Jovelyn Listana, is also entitled to moral
damages of P50,000 without need of proof other than the
fact of rape. By way of public example, and in order to
protect young girls from sexual abuse or exploitation,

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exemplary damages in the amount of P25,000 should also

be imposed against appellant.
WHEREFORE, the judgment of the Regional Trial
Court of Camarines Norte, Branch 38, in Criminal Case
No. 9000, finding ESMERALDO CANA Y DEL VALLE
alias “SMITH” GUILTY of rape beyond reasonable doubt, is
AFFIRMED with the MODIFICATION that the penalty is
reduced to reclusion perpetua, and the appellant is directed
to pay the victim, JOVELYN LISTANA P50,000 as civil
indemnity, P50,000 as moral damages, P25,000 as
exemplary damages, and the costs.
SO ORDERED.

          Bellosillo (Actg. C.J.), Puno, Vitug, Mendoza,

Panganiban, Ynares-Santiago, De Leon, Jr., Sandoval-
Gutierrez and Carpio, JJ., concur.
          Davide, Jr. (C.J.), Melo, Kapunan and Austria-
Martinez, JJ., On official leave.
      Corona, J., No part in the deliberations.

Judgment affirmed with modification.

______________

Art. 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 or is demented.

The crime of rape shall be punished by reclusion perpetua.

xxx

448

448 SUPREME COURT REPORTS ANNOTATED

People vs. Calago

Note.—The death penalty cannot be enjoined even if the

crime of rape was committed against a victim under
eighteen (18) years of age and the offender is her step-
parent if the information failed to allege any relationship
between the accused and his victim. (People vs. Ramon, 320
SCRA 775 [1999])

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