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Plaintiff-Appellee Accused-Appellant: People OF THE Philippines, Bienvinido Udang, Sr. Y Sevilla
Plaintiff-Appellee Accused-Appellant: People OF THE Philippines, Bienvinido Udang, Sr. Y Sevilla
DECISION
LEONEN, J : p
After the incident, Udang went out to report for duty as barangay
tanod while AAA remained inside his house as she was still too weak to
move. 11
One (1) year and three (3) months after, in December 2003, AAA, who
by then was already 13 years old, again had some drinks at Udang's house.
This time, she was with Bienvinido, Jr. and Udang himself. When AAA felt
sleepy, she went into one (1) of the rooms inside the house. 12 While AAA
was lying in bed, Udang, who had followed her into the room, went on top of
her, undressed her, and inserted his penis into her vagina until he
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ejaculated. 13 After having sexual intercourse with AAA, Udang went out to
report for duty as barangay tanod. AAA, too tired, remained lying in bed. 14
On April 14, 2004, AAA had herself physically examined by Dr. Revelo
at the Northern Mindanao Medical Center in Cagayan de Oro City. Dr. Revelo
found that AAA had hymenal lacerations in the 4, 7, and 10 o'clock positions,
15 as well as "excoriations" or reddish superficial scratched marks between
her thighs and genitalia. 16 According to Dr. Revelo, these lacerations "could
have been caused by trauma, frictions, infections, and also sexual
intercourse." 17 Although in AAA's case, the hymenal lacerations were old
and already healed. 18
The defense presented as witnesses Udang and his daughter, Betty.
Monera Gandawali (Gandawali) and Emirald Orcales (Orcales), fellow
inmates of AAA at the Cagayan de Oro City Jail, also testified in Udang's
defense. Their testimonies proved the following version of the facts.
Udang's daughter, Betty, denied drinking with AAA in September 2002.
She also belied the claim that her father, Udang, and her brother, Bienvinido,
Jr., had drinks with AAA in December 2003. However, she alleged that AAA
once went to their house to invite her to sniff some rugby, an offer which she
refused. She maintained that AAA only wanted to get back at her father for
having AAA arrested after she was caught grappling with Betty's
grandmother because the latter tried to stop AAA from sniffing rugby inside
Udang's house. 19
After Udang caused the arrest of AAA for sniffing rugby, 20 AAA was
detained at the Cagayan de Oro City Jail where she, Gandawali, and Orcales,
became fellow inmates. 21
Gandawali testified that sometime in 2007, she had the chance to talk
to AAA when the latter became anxious for receiving a subpoena to testify in
the cases she filed against Udang. During their conversation, AAA disclosed
that she was never actually raped by Udang and that it was actually her
stepfather who wanted to implicate him. 22
For her part, Orcales testified that she did not know Udang personally.
She claimed that she only knew Udang when AAA divulged her desire to
write to Udang and ask for his forgiveness. AAA likewise disclosed to Orcales
that it was not Udang but a security guard who had raped her and that it
was AAA's mother who had forced her to testify against Udang in retaliation
for her arrest for sniffing rugby. 23
In his defense, Udang denied ever raping AAA. He testified that he was
at home with his mother and other siblings at the time of the alleged
incident in September 2002. As for the alleged second incident in December
2003, Udang claimed that he was again at home with his mother and
siblings, Susan Udang and Cito Udang. He asserted that at 9:00 p.m., he
reported for duty as barangay tanod with his colleagues, Ruel Labis and
Carlo Banianon. Udang saw no reason for AAA to falsely charge him with
rape since no animosity existed between them. 24
Branch 22, Regional Trial Court, Cagayan de Oro City found for the
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prosecution and convicted Udang of rape under Article 266-A (1) of the
Revised Penal Code, 25 instead of sexual abuse under Section 5 (b) of
Republic Act No. 7610. 26 It ratiocinated that while the allegations in the first
and second Informations satisfied the elements of rape under the first and
third paragraphs of Article 266-A, respectively, the charges can only be one
(1) for rape under the first paragraph of Article 266-A because "[an] accused
cannot be prosecuted twice for a single criminal act." 27
The trial court found that the prosecution "indubitably established" 28
Udang's act of raping AAA since she "categorically narrated" 29 how he took
advantage of her while she was intoxicated and that had she resisted his
advances, she would be mauled by Betty. That AAA was raped was also
supported by Dr. Revelo's finding of hymenal lacerations and excoriations on
AAA's thighs and genitalia. 30
The trial court did not give credence to Udang's defense of denial and
alibi, stating that he could have requested his family members and fellow
barangay tanods, who were allegedly with him at the time of the incidents,
to corroborate his testimony but that he failed to do so. Without the
corroborating testimony of these alleged companions, his testimony was, for
the trial court, "self-serving and unworthy to be believed." 31 HEITAD
In its Brief for the Appellee, 52 the Office of the Solicitor General argues
that Udang was correctly convicted of two (2) counts of rape punished under
Article 266-A (1) of the Revised Penal Code. It claims that "testimonies of
child-victims of rape are to be given full weight and credence" 53 because "a
girl of tender years," 54 like AAA at the time of the reported incidents, "is
unlikely to impute to any man a crime so serious as rape, if what she claims
is not true." 55 It adds that "when a woman, more so when she is a minor,
says she has been raped, she says in effect all that is required to prove the
ravishment." 56
The principal issue for this Court's resolution is whether or not accused-
appellant, Bienvinido Udang, Sr. y Sevilla, was correctly convicted of rape
punished under the first paragraph of Article 266-A of the Revised Penal
Code.
The appeal is affirmed with modification. Based on the Informations,
Udang was charged with two (2) counts of sexual abuse punished under
Section 5 (b) of Republic Act No. 7610. Hence, he could only be convicted of
sexual abuse under the Informations filed in this case and not for rape under
the Revised Penal Code. Furthermore, upon examination of the evidence
presented, this Court finds Udang guilty of two (2) counts of sexual abuse.
Thus, the penalty erroneously imposed on him — reclusion perpetua for each
count of rape — should be reduced accordingly.
Udang attempts to raise doubt in his conviction because the judge who
penned the trial court decision, Judge Mordeno, was not the judge who heard
the parties and their witnesses during trial. For Udang, Judge Mordeno was in
no position to rule on the credibility of the witnesses, specifically, of AAA, not
having observed the manner by which the witnesses testified.
Ideally, the same trial judge 57 should preside over all the stages of the
proceedings, especially in cases where the conviction or acquittal of the
accused mainly relies on the credibility of the witnesses. The trial judge
enjoys the opportunity to observe, first hand, "the aids for an accurate
determination" 58 of the credibility of a witness "such as the witness'
deportment and manner of testifying, the witness' furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the
scant or full realization of an oath." 59
However, inevitable circumstances — the judge's death, retirement,
resignation, transfer, or removal from office — may intervene during the
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pendency of the case. 60 An example is the present case, where the trial
judge who heard the witnesses, Judge Francisco D. Calingin (Judge Calingin),
compulsorily retired pending trial. 61 Judge Calingin was then replaced by
Judge Mordeno, who proceeded with hearing the other witnesses and writing
the decision. Udang's argument cannot be accepted as this would mean that
every case where the judge had to be replaced pending decision would have
to be refiled and retried so that the judge who hears the witnesses testify
and the judge who writes the decision would be the same. 62 What Udang
proposes is impracticable.
As early as 1915, this Court ruled in United States v. Abreu 63 that in
the absence of a law expressly prohibiting a judge from deciding a case
where evidence was already taken, no such prohibition may be implied. In
Abreu, Judge Jose C. Abreu (Judge Abreu) refused to resolve a case where
the witnesses were already heard by the former presiding judge who had
resigned, arguing that the witnesses were heard by a judge whose authority
had been superseded by the then newly enacted Act No. 2347.
In rejecting Judge Abreu's argument, this Court held that the legislature
could not have intended to render void all the acts undertaken by judges
prior to the enactment of Act No. 2347. 64 According to this Court, Act No.
2347's purpose was "simply to change the personnel of the judges" 65 and
that it specifically provided that all cases and judicial proceedings pending
decision or sentence under the jurisdiction of the old courts shall be
continued until their final decision. 66
Further, this Court explained that with the existence of the transcript of
records, which are presumed to be a "complete, authentic record of
everything that transpires during the trial," 67 there is "little reason for
asserting that one qualified person may not be able to reach a just and fair
conclusion from [the] record as well as another." 68 Thus, it compelled Judge
Abreu to proceed with deciding the cases where evidence was already taken
by the former presiding judge.
I n People v. Court of First Instance of Quezon, Br. X , 69 a decision
acquitting the accused was penned by a trial judge temporarily detailed to
Branch 10 of the Court of First Instance of Quezon. However, the decision
was later on promulgated by a different judge who was subsequently
appointed permanently. The People of the Philippines then opposed the
judgment of acquittal, arguing that it was void for being promulgated
without authority as the temporary detail of the judge who penned the
decision had already expired. TIADCc
II
However, this Court disagrees with the trial court's ruling that charging
Udang with both rape, under Article 266-A (1) of the Revised Penal Code, and
sexual abuse, under Section 5 (b) of Republic Act No. 7610, would violate his
right against double jeopardy.
The right against double jeopardy is provided in Article III, Section 21 of
the Constitution:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law and
an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act. 72
The first sentence of the provision speaks of "the same offense," which
this Court has interpreted to mean offenses having identical essential
elements. 73 Further, the right against double jeopardy serves as a
protection: first, "against a second prosecution for the same offense after
acquittal"; 74 second, "against a second prosecution for the same offense
after conviction"; 75 and, finally, "against multiple punishments for the same
offense." 76
Meanwhile, the second sentence of Article III, Section 21 speaks of "the
same act," which means that this act, punished by a law and an ordinance,
may no longer be prosecuted under either if a conviction or acquittal already
resulted from a previous prosecution involving the very same act.
For there to be double jeopardy, "a first jeopardy [must] ha[ve]
attached prior to the second; . . . the first jeopardy has been validly
terminated; and . . . a second jeopardy is for the same offense as that in the
first." 77
A first jeopardy has attached if: first, there was a "valid indictment"; 78
second, this indictment was made "before a competent court"; 79 third,
"after [the accused's] arraignment"; 80 fourth, "when a valid plea has been
entered"; 81 and lastly, "when the accused was acquitted or convicted, or the
case was dismissed or otherwise terminated without his express consent." 82
Lack of express consent is required because the accused's consent to
dismiss the case means that he or she actively prevented the court from
proceeding to trial based on merits and rendering a judgment of conviction
or acquittal. 83 In other words, there would be a waiver of the right against
double jeopardy if consent was given by the accused. 84
To determine the essential elements of both crimes for the purpose of
ascertaining whether or not there is double jeopardy in this case, below is a
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comparison of Article 266-A of the Revised Penal Code punishing rape and
Section 5 (b) of Republic Act No. 7610 punishing sexual abuse:
The provisions show that rape and sexual abuse are two (2) separate
crimes with distinct elements. The "force, threat, or intimidation" or
deprivation of reason or unconsciousness required in Article 266-A (1) of the
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Revised Penal Code is not the same as the "coercion or influence" required
in Section 5 (b) of Republic Act No. 7610. Consent is immaterial in the crime
of sexual abuse because "the [mere] act of [having] sexual intercourse . . .
with a child exploited in prostitution or subjected to . . . sexual abuse" 85 is
already punishable by law. However, consent exonerates an accused from a
rape charge as exhaustively explained in Malto v. People: 86
VIOLATION OF SECTION 5 (B),
ARTICLE III OF RA 7610
AND RAPE ARE SEPARATE
AND DISTINCT CRIMES
Petitioner was charged and convicted for violation of Section 5
(b), Article III of RA 7610, not rape. The offense for which he was
convicted is punished by a special law while rape is a felony under
the Revised Penal Code. They have different elements. The two are
separate and distinct crimes. Thus, petitioner can be held liable for
violation of Section 5 (b), Article III of RA 7610 despite a finding that
he did not commit rape.
CONSENT OF THE CHILD IS
IMMATERIAL IN CRIMINAL
CASES INVOLVING
VIOLATION OF SECTION 5,
ARTICLE III OF RA 7610
Petitioner claims that AAA welcomed his kisses and touches and
consented to have sexual intercourse with him. They engaged in
these acts out of mutual love and affection. But may the "sweetheart
theory" be invoked in cases of child prostitution and other sexual
abuse prosecuted under Section 5, Article III of RA 7610? No.
The sweetheart theory applies in acts of lasciviousness and
rape, felonies committed against or without the consent of the victim.
It operates on the theory that the sexual act was consensual. It
requires proof that the accused and the victim were lovers and that
she consented to the sexual relations.
For purposes of sexual intercourse and lascivious conduct in
child abuse cases under RA 7610, the sweetheart defense is
unacceptable. A child exploited in prostitution or subjected to other
sexual abuse cannot validly give consent to sexual intercourse with
another person.
The language of the law is clear: it seeks to punish
[t]hose who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse. SDAaTC
III
A. We are neighbors.
Q. So, in crossing Lumbia, Cagayan de Oro City?
A. Yes.
Q. And you said that you were drinking, what were you drinking in
the house of B[ie]nvenido Udang, Sr.?
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A. Tanduay.
Q. And who were your companions, if any, at that time?
A. Betty, myself and Bienvenido, Jr.
xxx xxx xxx
Q. So, how many Tanduay bottles were you really drinking in
September, 2002?
A. Five.
Q. What happened next while you were in the house of the
accused?
A. They let me drink until I was drunk and carried me to the room.
Q. And when you were carried to the room, what happened next?
A. Then he undressed me.
Q. Let us clarify this, who carried you to the room?
A. Bienvenido Udang, Sr.
Q. When he carried you to the room, you said you were undressed,
who undressed you?
A. Bienvenido Udang, Sr.
Q[.] And what happened next?
A. He kissed me and then went on top of me.
Q. And when he was on top of you, what, if any, was your position
then?
A. I was lying down.
Q. By the way, you said that you were undressed at that time, AAA,
so at that time you had no upper garments?
A. No more.
Q. How about your lower garment?
A. No more.
Q. How about Bienvenido Udang, Sr., what was the state of his
dress?
A. I could not remember because it was already night and it was
dark.
Q. When he went on top of you, what was the state of his dress at
that time?
A. I did not notice.
Q. When Bienvenido Udang[,] Sr. went on top of you while you were
lying down, what was Bienvenido Udang, Sr. do[ing]?
A. I am shy.
Pros. Sia-Galvez:
We would like to manifest at this juncture, your honor, that the
witness is hesitant in answering [the] question because of the
feeling of embarrassment, your honor.
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(To witness) AAA, would you want your mother inside this court
room or we will have her stay outside this court room?
A. She will stay.
Q. Can we continue, AAA?
A. Yes.
xxx xxx xxx
Q. Let us go back, when Bienvenido Udang[,] Sr. was on top o[f]
you and you were lying down, what happened next?
A. He inserted his penis on my vagina.
xxx xxx xxx
Q. So, you felt [his] penis entering your vagina?
A. Yes. AScHCD
Footnotes
1. While the RTC documents referred to him as "Bienvinido Udang, Sr.," the CA
referred to him as "Bienvenido Udang, Sr."
2. Rollo , pp. 3-14. The Decision was penned by Associate Justice Edgardo T. Lloren
and concurred in by Associate Justices Marie Christine Azcarra-Jacob and
Edward B. Contreras of the Twenty-third Division, Court of Appeals, Cagayan
de Oro City.
3. REV. PEN. CODE, art. 266-A (1) provides:
1) By a man who shall have carnal knowledge of a woman under any of
the following circumstances:
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a) Through force, threat, or intimidation;
d) When the offended party is under twelve (12) years of age or is
demented, even though none of the circumstances mentioned above be
present.
4. RTC records, p. 3.
5. Id. at 15.
6. Rollo , p. 5, Court of Appeals Decision.
9. Id. at 10.
12. Id.
13. Id. at 12.
14. Id.
1) By a man who shall have carnal knowledge of a woman under any of
the following circumstances:
a) Through force, threat, or intimidation;
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual abuse;
Provided, That when the victims is under twelve (12) years of age, the
perpetrators shall be prosecuted under [paragraph (d), Article 266-A of the
Revised Penal Code, as amended by the Anti-Rape Law of 1997] and Article
336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be
reclusion temporal in its medium period[.]
27. CA rollo, p. 41, Trial court Decision.
33. Id.
34. Id.
35. Id. at 36-46. The Joint Decision was penned by Judge Richard D. Mordeno of
Branch 22, Regional Trial Court, Cagayan de Oro City.
36. CA rollo, p. 46, Trial Court Decision.
49. Id. at 27-31. Manifestation and Motion (In Lieu of Supplemental Brief).
50. Id. at 32-35. Manifestation with Motion.
54. Id.
55. Id.
56. Id.
57. People v. Court of First Instance of Quezon, Br. X, G.R. No. L-48817, October
29, 1993, 227 SCRA 457, 461 [Per J. Bellosillo, First Division].
58. People v. Diaz , 331 Phil. 240, 252 (1996) [Per J. Davide, Jr., Third Division].
59. Id.
60. See In Re: Transfer of Hearing of A.M. No. 07-11-592-RTC, 572 Phil. 1, 5 (2008)
[Per J. Reyes, R.T., Third Division].
63. Id.
64. Id. at 410.
66. Id.
67. Id. at 415.
68. Id.
69. People v. Court of First Instance of Quezon, Br. X, G.R. No. L-48817, October
29, 1993, 227 SCRA 457, 461 [Per J. Bellosillo, First Division].
70. Id. at 461.
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71. United States v. Abreu , 30 Phil. 402, 415 (1915) [Per Curiam, En Banc].
72. CONST., art. III, sec. 21.
73. See People v. Judge Relova, 232 Phil. 269, 283 (1987) [Per J. Feliciano, First
Division].
74. People v. Dela Torre , 430 Phil. 420, 430 (2002) [Per J. Panganiban, Third
Division].
75. Id.
76. Id.
77. See People v. Cawaling , 355 Phil. 1, 24 (1998) [Per J. Panganiban, First
Division].
78. Id.
79. Id.
80. Id.
81. Id.
82. Id.
83. See People v. Salico, 84 Phil. 722, 726 (1949) [Per J. Feria, En Banc].
84. Id.
85. Rep. Act No. 7610, sec. 5 (b).
86. 560 Phil. 119 (2007) [Per J. Corona, First Division].
90. Other cases citing the Abay doctrine are: People v. Dahilig , 667 Phil. 92 (2011)
[Per J. Mendoza, Second Division]; and People v. Matias, 687 Phil. 386 (2012)
[Per J. Perlas-Bernabe, Third Division].
91. Nierras v. Dacuycuy , 260 Phil. 6 (1990) [Per J. Paras, En Banc].
92. Id. at 13, citing People v. Milflores n , 115 SCRA 570 (1982) [Per J. Escolin,
Second Division].
93. People v. Judge Relova, 232 Phil. 269, 283 (1987) [Per J. Feliciano, First
Division].
98. Id.
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99. See Malto v. People , 560 Phil. 119, 135-136 (2007) [Per J. Corona, First
Division].
100. Amployo v. People , 496 Phil. 747, 758 (2005) [Per J. Chico-Nazario, Second
Division].
101. Id.
102. Id.
103. Rollo , p. 5, Court of Appeals Decision.
104. Id. at 9.
105. Id. at 9-11.
106. Id. at 11-12.
107. CA rollo, p. 28, Appellant's Brief citing TSN dated December 7, 2007, pp. 16-
17.
108. Id. at 26-27.
109. See People v. Bahuyan, 308 Phil. 346, 358 (1994) [Per J. Romero, Third
Division]. See also People v. Errojo, 299 Phil. 51, 61 (1994) [Per J. Nocon,
Second Division].
110. CA rollo, pp. 30-31, Appellant's Brief citing TSN dated December 7, 2007, p.
23.
111. Bautista v. Sarmiento , 223 Phil. 181, 185 (1985) [Per J. Cuevas, Second
Division], citing WORDS & PHRASES PERMANENT EDITION 33, p. 545.
112. Bautista v. Sarmiento , 223 Phil. 181, 185 (1985) [Per J. Cuevas, Second
Division].
113. Id. at 186.
114. CA rollo, p. 32, Appellant's Brief.
119. People v. Matias , 687 Phil. 386, 391 (2012) [Per J. Perlas-Bernabe, Third
Division].
120. Id.
121. REV. PEN. CODE, art. 70 partly provides:
1. Death.
2. Reclusión perpetua.
3. Reclusión temporal.
4. Prisión mayor.
5. Prisión correccional.
6. Arresto mayor.
7. Arresto menor.
122. See Malto v. People , 560 Phil. 119, 143-144 (2007) [Per J. Corona, First
Division].
123. Id. at 144.
124. Id. citing CIVIL CODE art. 2230, which provides that "[i]n criminal offenses,
exemplary damages as a part of the civil liability may be imposed when the
crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the
offended party."
n Note from the Publisher: Written as "P50,000.000" in the original document.
n Note from the Publisher: Written as "People v. Miraflores" in
the official document.