G.R. No. 210810. December 07, 2016

This is to resolve the Petition for Review on Certiorari
under Rule 45 of the Rules of Court dated January 28, 2014 of
petitioner Ricardo Del Poso y Dela Cerna seeking the reversal of the
Decision^[1] dated July 22, 2013 of the Court of Appeals (CA), which affirmed the Decision^[2] dated July 1, 2011 of the Regional Trial Court (RTC), Branch 38, Manila in Criminal Case No. 05-239429 convicting petitioner of violation of Section 10 (a) of Republic Act (R.A.) No. 7610.

The facts follow.

The victim, VVV^[3]
was given by her biological mother to the petitioner when she was 7
years old and the latter then acted as her guardian. On September 10,
2005, when VVV was 9 years old, petitioner ordered her to attend to
petitioner’s photocopying business. While attending the business, VVV
fell asleep. When petitioner saw VVV asleep, the former became furious
and laid VVV on top of an ironing board and placed a heated flat iron on
her. When VVV tried to evade the heat emanating from the flat iron, her
forehead, right elbow, left cheek, left buttock and back got burned.
Thereafter, petitioner got her down from the ironing board and ordered
her to sleep. The following morning, petitioner’s wife saw the burns on
VVV and told petitioner not to do it again. Later on, VVV went to her
Lola Ma. Luisa to watch TV and the latter, and several other people, saw
the burns prompting Lola Ma. Luisa to bring VVV to the Barangay Hall
where the incident was put on blotter. Thereafter, VVV was brought to
the hospital and then to the police station. Hence, an Information was
filed against petitioner, which reads as follows:

That on or about September 10, 2005, in the City of Manila,
Philippines, the said accused, did then and there wilfully, unlawfully,
and knowingly commit cruelty and abusive acts upon VVV, a minor, 9 years
old, by then and there injuring the said minor on the forehead, right
cheek, abdomen and at her right forearm with a hot flat iron, inflicting
upon her multiple 1^st degree burns, which debases and
demeans the intrinsic worth and dignity of said VVV as a human being, an
act prejudicial to her normal growth and development, to her damage and
prejudice.

Contrary to law.

The prosecution presented seven (7) witnesses, namely: Anielyn
Barnes, the Social Worker-on-case; SPO2 Susan Mendez of Station VI, the
investigator; Redentor Torres, a Barangay Kagawad; VVV, herself; Laura
Delos Santos, Records Custodian of the Ospital ng Maynila; Nanette
Repalpa, a social worker who took custody of the victim; and Dr. Martin
Joseph Cabahog. VVV, during her testimony, also narrated the other acts
of physical abuse that petitioner had inflicted on her prior to the
incident which became the basis of the present case.

Petitioner,
on the other hand, claimed that the incident happened accidentally.
According to him, on that particular day, he just came from work when he
saw VVV playing under a table and to teach her a lesson, he tried to
scare her with a hot flat iron. Petitioner was then not aware that VVV
was hurt as there were no marks on her. The marks only became evident
the following morning. Petitioner claimed that he applied medication on
VVV’s burns.

The RTC found petitioner guilty beyond reasonable
doubt of violation of Section 10 (a) of R.A No. 7610 in its Decision
dated July 1, 2011, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the Court finds that the
prosecution has proven the guilt of the accused beyond reasonable doubt
from the crime of violation of Section 10 (a) of RA 7610, “The Special
Protection of Children Against Child Abuse, Exploitation and
Discrimination Act” and hereby sentences Ricardo Del Poso y Cerna to
suffer the penalty of four (4) years, nine (9) months and eleven (11)
days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum.

SO ORDERED.

Petitioner filed his appeal with the CA and the latter court, in
its Decision dated July 22, 2013, dismissed the same appeal and affirmed
the Decision of the RTC, the dispositive portion of which reads:

WHEREFORE, premises considered, the appeal filed by appellant is
hereby DENIED. The Decision dated 1 July 2011 and Order dated 27
October 2011 RTC, (NCJR) Branch 38, Manila in Crim. Case No. 05-239429
are AFFIRMED.

SO ORDERED.^[4]

Hence, the present petition.

The grounds relied upon by petitioner are the following:

1. THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING THE
   PETITIONER WHEN THE MINOR CHILD-COMPLAINANT ADMITTED THAT SHE SUSTAINED
   THE BURNS WHEN SHE TRIED TO EVADE THE HEATED IRON THAT (PETITIONER) WAS
   HOLDING OVER HER WHILE LYING ON THE IRONING BOARD JUST TO SCARE HER AS A
   WAY OF CHASTENING HER, WHICH THE COURT FOUND IN ITS ASSAILED DECISION.
   [EQUALLY] OF WEIGHT, WHICH IT LIKEWISE FOUND AND WHICH IT
   UNCEREMONIOUSLY DISREGARDED IS THE RELATION OF THE PARTIES ESTABLISHED
   BY FATE.

2. ASSUMING THE HONORABLE COURT OF APPEALS IS CORRECT, IT ERRED
   WHEN IT REFUSED TO APPRECIATE IN FAVOR OF THE PETITIONER THE
   MITIGATING CIRCUMSTANCES OF NO INTENTION TO COMMIT SO GRAVE A WRONG AS
   THAT COMMITTED DESPITE THE PARALLEL CASE OF PEOPLE V. ENRIQUEZ, 58 PHIL.
   536 IN WHICH IT WAS HELD THAT TO BE PRESENT, PASSION AND OBFUSCATION
   AND SUCH OTHER CIRCUMSTANCES ANALOGOUS THERETO.

3. HENCE, THE HONORABLE COURT OF APPEALS ERRED IN NOT MODIFYING THE SENTENCE OF THE PETITIONER TO ONE DEGREE LOWER.^[5]

Petitioner insists that the CA erred in convicting him when the
minor admitted that she sustained the burns when she tried to evade the
heated iron that he was holding over her while lying on the ironing
board just to scare her as a way of chastening her. He also claims that
assuming the CA is correct, it still erred in refusing to appreciate the
mitigating circumstances of no intention to commit so grave a wrong as
that committed and passion and/or obfuscation, thus, also erring in not
modifying his sentence to another degree lower.

The Office of the Solicitor General (OSG), in its Comment^[6]
dated June 19, 2014, argues that the trial court and the CA correctly
convicted the petitioner for violation of R.A. No. 7610. It also avers
that the trial court correctly denied appreciation of the mitigating
circumstances of passion and/or obfuscation and lack of intention to
commit so grave a wrong, and as such properly applied the corresponding
penalty without any mitigating circumstance.

In its Reply^[7] dated October 8, 2014, petitioner reiterates the arguments and issues he presented in his petition.

The petition is unmeritorious.

Under Rule 45, Section 1 of the Rules of Court, only questions of law may be raised in a Petition for Review on Certiorari:

Section 1. Filing of petition with Supreme Court. – A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized
by law, may file with the Supreme Court a verified petition for review
on certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency.

As an exception to the rule, questions of fact may be raised in a Rule 45 Petition if any of the following is present:

(1) when there is grave abuse of discretion; (2) when the
findings are grounded on speculations; (3) when the inference made is
manifestly mistaken; (4) when the judgment of the Court of Appeals is
based on a misapprehension of facts; (5) when the factual findings are
conflicting; (6) when the Court of Appeals went beyond the issues of the
case and its findings are contrary to the admissions of the parties;
(7) when the Court of Appeals overlooked undisputed facts which, if
properly considered, would justify a different conclusion; (8) when the
findings of the Court of Appeals are contrary to those of the trial
court; (9) when the facts set forth by the petitioner are not disputed
by the respondent; and (10) when the findings of the Court of Appeals
are premised on the absence of evidence and are contradicted by the
evidence on record.^[8]

A question of fact exists “when the doubt or difference arises as to the truth or the falsehood of alleged facts.”^[9]
On the other hand, a question of law exists “when the doubt or
difference arises as to what the law is on a certain state of facts.”^[10]
A close reading of the issues presented by petitioner shows that they
are all factual in nature, and thus, does not fall within the scope of a
petition for review under Rule 45 of the Rules of Court nor do they
fall within the exceptions to the general rule.

Nevertheless, even if this Court should disregard such infirmity, the petition still fails to impress.

Section 10 of R.A. No. 7610 otherwise known as “An Act Providing for
Stronger Deterrence and Special Protection Against Child Abuse,
Exploitation and Discrimination, and for Other Purposes,” provides the
following:

ARTICLE VI
Other Acts of Abuse

SECTION 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child’s
Development. –

(a)

Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

Section 3 of the same law defines child abuse as –

3 (b) “Child abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.

The prosecution was able to prove the elements of the violation of
the said law, namely: (1) the minority of VVV; (2) the acts
constituting physical abuse, committed by petitioner against VVV; and
(3) the said acts are clearly punishable under R.A. No. 7610. As aptly
ruled by the CA citing the factual findings of the RTC, all the elements
of the crime charged are present, thus:

We agree with the trial court when it ruled that the prosecution
have established the elements of child abuse in this case, to wit: (a)
the victim’s minority; (b) the acts constituting physical and
psychological abuse when accused employed the use of a heated flat iron;
and (c) said excessive acts of rebuke and chastening are clearly
punishable under RA No. 7610. This is clearly shown in the evidence it
presented during trial particularly the testimonies of its witnesses and
that of the minor victim, VVV, who gave a clear, consistent, and
credible account of the events on September 10, 2010, in a
straightforward and candid manner. Settled is the rule that when the
victim’s testimony is straightforward, convincing, and consistent with
human nature and the normal course of things, unflawed by any material
or significant inconsistency, it passes the test of credibility, and the
accused may be convicted solely on the basis thereof. Hence, We see no
reason not to affirm the factual findings of the trial court. Equally,
settled is the rule that factual findings of the trial court are
entitled to respect and are not to be disturbed on appeal, unless some
facts or circumstances of weight and substance, having been overlooked
or misinterpreted, might materially affect the disposition of the case.
Not one of the exceptions is present in this case.^[11]

In Araneta v. People,^[12] this Court discussed the nature of the crime of child abuse as defined in R.A. No. 7610, thus:

Republic Act No. 7610 is a measure geared towards the
implementation of a national comprehensive program for the survival of
the most vulnerable members of the population, the Filipino children, in
keeping with the Constitutional mandate under Article XV, Section 3,
paragraph 2, that The State shall defend the right of the
children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development. This piece
of legislation supplies the inadequacies of existing laws treating
crimes committed against children, namely, the Revised Penal Code and
Presidential Decree No. 603 or the Child and Youth Welfare Code. As a
statute that provides for a mechanism for strong deterrence against the
commission of child abuse and exploitation, the law has stiffer
penalties for their commission, and a means by which child traffickers
could easily be prosecuted and penalized. Also, the definition of child
abuse is expanded to encompass not only those specific acts of child
abuse under existing laws but includes also other acts of neglect,
abuse, cruelty or exploitation and other conditions prejudicial to the
child’s development.

Article VI of the statute enumerates the other acts of abuse. Paragraph (a) of Section 10 thereof states:

Article VI

OTHER ACTS OF ABUSE

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Childs Development.

(a) Any person who shall commit any other acts of abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development
including those covered by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its minimum period.

As gleaned from the foregoing, the provision punishes not only
those enumerated under Article 59 of Presidential Decree No. 603, but
also four distinct acts, i.e., (a) child abuse, (b) child
cruelty, (c) child exploitation and (d) being responsible for conditions
prejudicial to the child’s development. The Rules and Regulations of
the questioned statute distinctly and separately defined child abuse,
cruelty and exploitation just to show that these three acts are
different from one another and from the act prejudicial to the child’s
development. Contrary to petitioner’s assertion, an accused can be
prosecuted and be convicted under Section 10(a), Article VI of Republic
Act No. 7610 if he commits any of the four acts therein. The prosecution
need not prove that the acts of child abuse, child cruelty and child
exploitation have resulted in the prejudice of the child because an act
prejudicial to the development of the child is different from the
former acts.

Moreover, it is a rule in statutory construction that the word
or is a disjunctive term signifying dissociation and independence of one
thing from other things enumerated. It should, as a rule, be construed
in the sense which it ordinarily implies. Hence, the use of or in
Section 10(a) of Republic Act No. 7610 before the phrase be responsible
for other conditions prejudicial to the child’s development supposes
that there are four punishable acts therein. First, the act of child
abuse; second, child cruelty; third, child exploitation; and fourth,
being responsible for conditions prejudicial to the child’s development.
The fourth penalized act cannot be interpreted, as petitioner suggests,
as a qualifying condition for the three other acts, because an analysis
of the entire context of the questioned provision does not warrant such
construal.

The subject statute defines children as persons below eighteen
(18) years of age; or those over that age 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.^[13]

As to the contention of petitioner that the mitigating
circumstance of lack of intention to commit so grave a wrong should have
been appreciated, this Court finds it unmeritorious. It is a hornbook
doctrine that this mitigating circumstance can be taken into account
only when the facts proven show that there is a notable and evident
disproportion between the means employed to execute the criminal act and
its consequences.^[14] The
facts found by the trial court and the CA show that petitioner intended
the natural consequence of his act. The observation of the OSG that
petitioner’s intention of inflicting such harm should be judged in
accordance with his previous acts of abusing the victim, of regarding
VVV as a mere adoptive child who is not his blood relative and
petitioner’s evident superiority of physique as a fully grown man
inflicting harm upon a 9-year-old victim, and thus, when petitioner
pressed the hot iron upon the body of the victim, it must be presumed
that his intention was to physically abuse her since such act was
sufficient to produce the evil which resulted from such act is also
worth noting.^[15]

Applying the same set of facts, petitioner is also not entitled to the
application of the mitigating circumstance of passion and/or
obfuscation. The mitigating circumstance of passion or obfuscation only
applies if the act of the victim is both unlawful and sufficient to
produce such condition of mind.^[16]
A child who fell asleep while attending to a business establishment is
not an offense at all and could not give rise to an impulse sufficiently
powerful to naturally produce a justified diminution of an adult’s
self­control. As correctly ruled by the CA:

Going now to the theory of appellant that the trial court
committed error when it did not appreciate the mitigating circumstances
of passion and/or obfuscation and lack of intent to commit so grave a
wrong, the same deserves scant consideration.

To be entitled to the mitigating circumstance [of] passion
and/or obfuscation the following elements must be present: (1) there
should be an act both unlawful and sufficient to produce such condition
of mind; (2) the act that produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time,
during which the perpetrator might recover his normal equanimity. These
elements are not present here. There was no unlawful and sufficient act
on VVV’s part which sufficiently provoked passion and/or obfuscation on
appellant’s side. As correctly observed by the trial court, the dozing
off of VVV when she was ordered to watch over the Xerox machine for
possible clients is not an unlawful act sufficient to produce passion
and raging anger, even to a disciplinarian foster parent. Hence,
appellant cannot successfully claim that he was blinded by passion and
obfuscation.^[17]

Hence, the trial court and the CA correctly imposed the penalty by
not considering the mitigating circumstances claimed by petitioner.
Section 10 (a) of R.A. No. 7610 imposes the penalty of prision mayor
in its minimum period. Applying the Indeterminate Sentence Law, the
trial court did not err when it imposed the penalty of 4 years, 9 months
and 11 days of prision correccional, as minimum, to 6 years, 8 months and 1 day of prision mayor, as maximum.

WHEREFORE, the Petition for Review on Certiorari under Rule 45 dated January 28, 2014 of Ricardo Del Poso y Dela Cerna is DENIED for
lack merit and the Decision dated July 22, 2013, dismissing
petitioner’s appeal and affirming the Decision dated July 1, 2011 of the
Regional Trial Court, Branch 38, Manila in Criminal Case No. 05-239429,
convicting petitioner of violation of Section 10 (a) of R.A No. 7610
and imposing upon petitioner the indeterminate penalty of imprisonment
of four (4) years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, is AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Brion,^[*] Perez and Reyes, JJ., concur.

---

December 16, 2016

NOTICE OF JUDGMENT

Sirs / Mesdames:

Please take notice that on December 7, 2016 a
Decision, copy attached hereto, was rendered by the Supreme Court in the
above-entitled case, the original of which was received by this Office
on December 16, 2016 at 11:00 a.m.

Very truly yours, (SGD) WILFREDO V. LAPITAN Division Clerk of Court

---

^[*] Designated Additional Member in lieu of Associate Justice Francis H. Jardeleza per Raffle dated October 1, 2014.

^[1] Penned by Associate
Justice Marlene Gonzales-Sison, with the concurrence of Associate
Justices Hakim S. Abdulwahid and Edwin D. Sorongon.

^[2] Penned by Presiding Judge Ma. Celestina C. Mangrobang.

^[3] This is pursuant to the ruling of this Court in People of the Philippines v. Cabalquinto
(533 Phil. 703, 709 [2006]) wherein this Court resolved to withhold the
real name of the victims-survivors and to use fictitious initials
instead to represent them in its decisions. Likewise, the personal
circumstances of the victims-survivors or any other information tending
to establish or compromise their identities, as well as those of their
immediate family or household members, shall not be disclosed. The names
of such victims, and of their immediate family members other than the
accused, shall appear as “AAA,” “BBB,” “CCC,” and so on. Addresses shall
appear as “XXX” as in “No. XXX Street, XXX District, City of XXX.”

The Supreme Court took note of the legal mandate on the utmost
confidentiality of proceedings involving violence against women and
children set forth in Sec. 29 of Republic Act No. 7610, otherwise known
as Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act; Sec. 44 of Republic Act No. 9262, otherwise known as
Anti-Violence Against Women and Their Children Act of 2004; and Sec. 40
of A.M. No. 04-10-11-SC, known as Rule on Violence Against Women and
Their Children effective November 15, 2004.

^[4] Rollo, p. 41.

^[5] Id. at 13.

^[6] Id. at 60-92.

^[7] Id. at 99-106.

^[8] Pagsibigan v. People, 606 Phil. 233, 241-242 (2009) [Per J. Carpio, First Division]. See Medina v. Asistio, Jr.,
G.R. No. 75450, November 8, 1990, 191 SCRA 218, 223 [Per J. Bidin,
Third Division] where this court enumerated for the first time the
instances when the findings of fact by the trial courts and the Court of
Appeals were passed upon and reviewed in a Rule 45 Petition.

^[9] Benito v. People, G.R. No. 204644, February 11, 2015, 750 SCRA 450, 460, citing Sesbreno v. Honorable Court of Appeals, 310 Phil. 671, 679 (1995) [Per J. Quiason, First Division], Bernardo v. Court of Appeals, G.R. No. 101680, December 7, 1992, 216 SCRA 224, 232 (1992) [Per J. Campos, Jr., Second Division].

^[10] Id.

^[11] Rollo, p. 37.

^[12] 578 Phil. 876 (2008).

^[13] Araneta v. People, supra, at 883-886. (Emphases ours)

^[14] People v. Amit, 143 Phil. 48, 50 (1970).

^[15] Rollo, pp. 86-87.

^[16] See People v. Takbobo, G.R. No. 102984, June 30, 1993, 224 SCRA 134, 142.

^[17] Rollo, p. 40. (Emphases omitted)