G.R. No.

202122, January 15, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff–Appellee, v. BERNABE PAREJA Y CRUZ, Accused–Appellant

FACTS: The accused–appellant Bernabe Pareja y Cruz (Pareja) is appealing the January 19, 2012 Decision1of the
Court of Appeals in CA–G.R. CR.–H.C. No. 03794, which affirmed in toto the conviction for Rape and Acts of
Lasciviousness meted out by Branch 113, Regional Trial Court (RTC) of Pasay City in Criminal Case Nos. 04–1556–
CFM and 04–1557–CFM.

For the two counts of Rape:chanRoblesvirtualLawlibrary

CriminalCaseNo.04–1556–CFM

That on or about and sometime in the month of February, 2004, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above–named accused, Bernabe Pareja y Cruz, being the
common law spouse of the minor victim’s mother, through force, threats and intimidation, did then and there
wil[l]fully, unlawfully and feloniously commit an act of sexual assault upon the person of [AAA 3 ], a minor 13 years
of age, by then and there mashing her breast and inserting his finger inside her vagina against her will. 4

CriminalCaseNo.04–1557–CFM

That on or about and sometime in the month of December, 2003, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above–named accused, Bernabe Pareja y Cruz, being the
stepfather of [AAA], a minor 13 years of age, through force, threats and intimidation, did then and there
wil[l]fully, unlawfully and feloniously have carnal knowledge of said minor against her will.5

The first incident took place [i]n December 2003 [the December 2003 incident]. AAA’s mother was not in the
house and was with her relatives in Laguna. Taking advantage of the situation, [Pareja], while AAA was asleep,
placed himself on top of [her]. Then, [Pareja], who was already naked, begun to undress AAA. [Pareja] then
started to suck the breasts of [AAA]. Not satisfied, [Pareja] likewise inserted his penis into AAA’s anus. Because
of the excruciating pain that she felt, AAA immediately stood up and rushed outside of their house.

Despite such traumatic experience, AAA never told anyone about the [December 2003] incident for fear that
[Pareja] might kill her. [Pareja] threatened to kill AAA in the event that she would expose the incident to anyone.

AAA further narrated that the [December 2003] incident had happened more than once. According to AAA, [i]n
February 2004 [the February 2004 incident], she had again been molested by [Pareja]. Under the same
circumstances as the [December 2003 incident], with her mother not around while she and her half–siblings were
asleep, [Pareja] again laid on top of her and started to suck her breasts. But this time, [Pareja] caressed [her] and
held her vagina and inserted his finger [i]n it.
Subsequently, AAA, together with her mother, proceeded to the Child Protection Unit of the Philippine General
Hospital for a medical and genital examination. Genital findings show Clear Evidence of Blunt Force or Penetrating
Trauma.

After the results of the medico–legal report confirmed that AAA was indeed raped, AAA’s mother then filed a
complaint for rape before the Pasay City Police Station. Ruling of the RTC
On January 16, 2009, the RTC acquitted Pareja from the charge of attempted rape but convicted him of the crimes
of rape and acts of lasciviousness in the December 2003 and February 2004 incidents, respectively.

Ruling of the Court of Appeals

Wanting to reverse his two convictions, Pareja appealed 13 to the Court of Appeals, which on January 19, 2012,
affirmed in toto the judgment of the RTC in Criminal Case Nos. 04–1556 and 04–1557

ISSUE: whether or not the accused can be found guilty of rape through carnal knowledge.

HELD: NO.
In Criminal Case No. 04–1557–CFM or the December 2003 incident, Pareja was charged and convicted of the
crime of rape by sexual assault. The enactment of Republic Act No. 8353 or the Anti–Rape Law of 1997,
revolutionized the concept of rape with the recognition of sexual violence on “sex–related” orifices other than a
woman’s organ is included in the crime of rape; and the crime’s expansion to cover gender–free rape. “The
transformation mainly consisted of the reclassification of rape as a crime against persons and the introduction of
rape by ‘sexual assault’ as differentiated from the traditional ‘rape through carnal knowledge’ or ‘rape through
sexual intercourse.’”44 Republic Act No. 8353 amended Article 335, the provision on rape in the Revised Penal
Code and incorporated therein Article 266–A which reads:
Article 266–A. Rape, When and How Committed. – Rape is committed –

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

2) By any person who, under any of the circumstances mentioned in paragraph 1 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.

Thus, under the new provision, rape can be committed in two ways:

1. Article 266–A paragraph 1 refers to Rape through sexual intercourse, also known as “organ rape” or “penile
rape.” 45 The central element in rape through sexual intercourse is carnal knowledge, which must be proven
beyond reasonable doubt.46

2. Article 266–A paragraph 2 refers to rape by sexual assault, also called “instrument or object rape,” or “gender–
free rape.”47 It must be attended by any of the circumstances enumerated in subparagraphs (a) to (d) of
paragraph 1.48

In People v. Abulon,49 this Court differentiated the two modes of committing rape as follows:

(1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman;

(2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a
man or a woman;
(3) In the first mode, rape is committed through penile penetration of the vagina, while the second 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 for rape under the first mode is higher than that under the second.

Under Article 266–A, paragraph 2 of the Revised Penal Code, as amended, rape by sexual assault is “[b]y any
person who, under any of the circumstances mentioned in paragraph 1 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.”

AAA positively and consistently stated that Pareja, in December 2003, inserted his penis into her anus. While
she may not have been certain about the details of the February 2004 incident, she was positive that Pareja had
anal sex with her in December 2003, thus, clearly establishing the occurrence of rape by sexual assault. In other
words, her testimony on this account was, as the Court of Appeals found, clear, positive, and probable. 50

However, since the charge in the Information for the December 2003 incident is rape through carnal knowledge,
Pareja cannot be found guilty of rape by sexual assault even though it was proven during trial. This is due to the
material differences and substantial distinctions between the two modes of rape; thus, the first mode is not
necessarily included in the second, and vice–versa. Consequently, to convict Pareja of rape by sexual assault
when what he was charged with was rape through carnal knowledge, would be to violate his constitutional right
to be informed of the nature and cause of the accusation against him. 51

Nevertheless, Pareja may be convicted of the lesser crime of acts of lasciviousness under the variance doctrine
embodied in Section 4, in relation to Section 5, Rule 120 of the Rules of Criminal Procedure,52to wit:

SEC. 4. Judgment in case of variance between allegation and proof. – When there is a 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.

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.

Article 336 of the Revised Penal Code provides:

Art. 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of
either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prisión
correccional.

The elements of the above crime are as follows:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a. By using force or intimidation; or

c. When the offended party is under 12 years of age; and

(3) That the offended party is another person of either sex.53 (Citation omitted.)

Clearly, the above–mentioned elements are present in the December 2003 incident, and were sufficiently
established during trial. Thus, even though the crime charged against Pareja was for rape through carnal
knowledge, he can be convicted of the crime of acts of lasciviousness without violating any of his constitutional
rights because said crime is included in the crime of rape.54

Nonetheless, the Court takes this case as an opportunity to remind the State, the People of the Philippines, as
represented by the public prosecutor, to exert more diligence in crafting the Information, which contains the
charge against an accused. The primary duty of a lawyer in public prosecution is to see that justice is done55 – to
the State, that its penal laws are not broken and order maintained; to the victim, that his or her rights are
vindicated; and to the offender, that he is justly punished for his crime. A faulty and defective Information, such
as that in Criminal Case No. 04–1556–CFM, does not render full justice to the State, the offended party, and
even the offender. Thus, the public prosecutor should always see to it that the Information is accurate and
appropriate.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA–G.R. CR.–
H.C. No. 03794 is hereby AFFIRMED with MODIFICATION. We find accused–appellant
Bernabe Pareja y Cruz GUILTY of two counts of Acts of Lasciviousness, defined and
penalized under Article 336 of the Revised Penal Code, as amended. He is sentenced to two
(2) indeterminate prison terms of 6 months of arresto mayor, as minimum, to 4 years and 2
months of prisión correccional, as maximum; and is ORDERED to pay the victim, AAA,
P20,000.00 as civil indemnity, P30,000.00 as moral damages, and P10,000.00 as exemplary
damages, for each count of acts of lasciviousness, all with interest at the rate of 6% per
annum from the date of finality of this judgment.Ch

l POTOT v PEOPLE

383 SCRA 449

FACTS

Dec.12,1999: Potot was charged with homicide before the RTC for assaulting and stabbing a certain Rodolfo Dapulag with a
knife, thereby causing his death.

Feb.1, 2000: Upon arraignment, Potot pleaded guilty and invoked the mitigating circumstances of plea of guilty and voluntary
surrender. He was later convicted of homicide w/ the above stated mitigating circumstances.

Feb.3, 2000: Potot filed a manifestation with motion informing the TC that he is not appealing from the Decision and praying that
a commitment order be issued so he could immediately serve his sentence.

Feb.11, 2000: Private complainant Rosalie Dapulag (wife of the victim), with the conformity of the public prosecutor, filed a
motion for reconsideration/retrial praying that the decision be set aside and that the case be heard again because of certain
irregularities committed before and during the trial. She alleged that there were 2 other men involved in the commission of the
crime and that the eyewitness deliberately withheld the information upon solicitation by a certain Mayor Dapulag and upon the
eyewitnesses’ own belief that such inclusion would complicate the case and make it more difficult.

Petitioner opposed this motion, asserting that the decision can no longer be modified or set aside because it became final when
he formally waived his right to appeal.

May 3, 2000: The trial court granted Rosalie Dapulag’s motion, set aside its previous Decision as well as ordered that the
records of the case be remanded to the Office of the Provincial Prosecutor for re-evaluation of the evidence and filing of the
corresponding charge.

Petitioner filed a MFR, contending that the trial court has no jurisdiction to issue the Feb.1 order as the Decision had become
final, and that the said order would place him in double jeopardy.

May 26, 2000: The trial court denied the MFR for the reason that the State is not bound by the error or negligence of its
prosecuting officers, hence, jeopardy does not attach.

Petitioner now assails the May 3rd and May 26 orders with the Sol.Gen. agreeing that the challenged orders should be set aside
and that the Feb. 1 Decision should be reinstated.

ISSUES

WON the private complainant can file a motion asking for a modification of judgment of conviction.

HELD

NO. Ratio Only the accused may ask for a modification or setting aside of a judgment of conviction which he must do before the
said judgment becomes final or before he perfects his appeal.

Reasoning

- Sec. 7 Rule 120 of the Revised Rules on Criminal Procedure, as amended, provides:

Sec. 7. Modification of judgment - A judgment of conviction may, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final
after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to appeal, or has applied for probation.

- It is thus clear that only the accused may ask for a modification or setting aside of a judgment of conviction. And this he must do
before the said judgment becomes final or before he perfects his appeal. Such judgment becomes final in any of the following
ways: (a) when no appeal is seasonably filed by the accused, except in case of automatic review of the decision imposing the
capital penalty; (b) when he has partially or totally served his sentence; (c) when he expressly waives his right to appeal the
judgment, except when the death penalty is imposed; or (d) when he applies for probation. When a judgment becomes final, the
trial court which rendered the judgment of conviction loses jurisdiction to alter, modify, or revoke it.