PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JULIO FRANCISCO Y LOPEZ, ACCUSED-APPELLANT.

In what seems to be a continuation of a dream so surreal, Marilyn Perez
(hereinafter MARILYN), twelve years (12) old, woke up from her
deep slumber between 10 p.m. and 11 p.m. of all nights of 25 December 1997, in
their residence in barangay Sagrada Familia, Hagonoy, Bulacan, to find her
alleged stepfather Julio Francisco (FRANCISCO), sucking her
nipples and inserting his male organ into her private parts.^[1] The bizarre situation assumed contemptible
proportions by reason of the perverted intrepidity in which the dastardly deed
was undertaken.

On that night, the family members slept side by side with each other on a
single mat and under one mosquito net. MARILYN slept by the wall and beside her
mother. On her mother’s other side slept FRANCISCO. Beside
FRANCISCO slept his daughter with Felicidad. About a meter away
was MARILYN‘s brother. With these sleeping positions,
FRANCISCO, as earlier detailed, was able to sexually violate
MARILYN.^[2]

MARILYN claimed that after the sexual transgression,
FRANCISCO threatened her with a kitchen knife so as not to
divulge the incident to anybody lest he kill her.^[3] But MARILYN seemed to
have gathered courage for she was able to tap (kalabit) her sleeping
mother who woke up to find her husband atop her daughter. She heard her mother
blurt out “Hey, why did you do that to my child? She is also your child!
(Hoy, bakit mo ginalaw ang aking anak? Anak mo na rin iyan!).^[4]

Mother and daughter went to the house of the former’s sister Virginia and
told her the story. From there, the trio proceeded to the barangay hall to lodge
a complaint. FRANCISCO was later on brought to the police
station where he was incarcerated.

FRANCISCO was subsequently indicted for rape under an
information which reads as follows:

The undersigned Asst. Provincial Prosecutor, on complaint of offended party,
Marilyn M. Perez, accuses Julio Francisco y Lopez of the crime of rape,
penalized under the provisions of Art. 335 of the Revised Penal Code, as amended
by R. A. 8353 otherwise known as “The Anti-Rape Law of 1997, committed as
follows:

That on or about the 25th day of December, 1997, in the municipality of
Hagonoy, Province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then and there wilfully, unlawfully
and feloniously, by means of force and intimidation, with lewd designs, have
carnal knowledge of his stepdaughter, Marilyn M. Perez, 12 years old, against
her will and without her consent.

Contrary to law.^[5]

FRANCISCO was arraigned on 20 May 1998 before the Regional
Trial Court of Bulacan, Branch 21 in Malolos, whereby he entered a plea of “Not
Guilty.” His case was docketed as Criminal Case No. 529-M-98. After the
mandatory pre-trial conference, trial on the merits ensued.

The prosecution first presented MARILYN who testified on
matters tending to prove the above narration of facts. She also disclosed that
the sexual molestation committed upon her by FRANCISCO on
Christmas night of 1997 was not the first time. She revealed that since she was
eight (8) years old she had been sexually assaulted for about five times already
by FRANCISCO. She remembered that her mother started living in
with FRANCISCO when she was about seven (7) years old. Her
natural father was already dead at that time.

The prosecution also presented the mother of MARILYN,
Felicidad Perez. She basically claimed that on the night in question, her
daughter “touched (kalabit)” her which gesture woke her up. Felicidad
then heard MARILYN say that FRANCISCO had lain
on top of her. She then saw that FRANCISCO was indeed on top of
her daughter who was silently weeping.^[6]
Felicidad asked FRANCISCO “why he placed himself on top of
Marilyn when she thought all the while that he treated the girl as his own
child.” FRANCISCO remained silent.^[7]

Felicidad also admitted that the Christmas night incident was not the first
time that FRANCISCO sexually abused MARILYN.
In fact, MARILYN had been telling Felicidad of the
sexual molestations which occurred since the former was in Grade Two. Felicidad
remained patient with FRANCISCO because their union produced a
daughter. In fact, she had personally caught FRANCISCO in
coitus with MARILYN when the latter was in Grade Two.^[8] Felicidad claimed that
FRANCISCO is her husband but admitted that they are not
married.^[9]

Felicidad’s other testimonial evidence coincided with
MARILYN‘s recital relative to FRANCISCO‘s
arrest.

Dr. Manuel Aves of the Bulacan Provincial Crime Laboratory Office was also
called to the witness stand to confirm the medical findings he made after
conducting a physical examination on MARILYN on 29 December
1997. Dr. Aves stated that his findings revealed that “there were multiple
[hymenal] healed lacerations at 12, 3, 4, 6, 9 and 10 o’clock with abrasions and
swelling.” He concluded that said results manifested recent sexual
manipulations.^[10]

For its part, the defense first presented accused FRANCISCO.
He denied the accusation and gave the excuse that he was sleeping on the night
and time in question. He rationalized that his wife, furious at his failure to
adequately provide for the family needs aggravated by the fact that she had to
earn money during the Christmas season, concocted the malevolent scheme.

He then admitted that he had been living with Felicidad without the benefit
of marriage which relationship produced a daughter who was already eight (8)
years old.^[11] He also testified that
MARILYN lived with the sister of Felicidad and only visited the
family.

The defense also presented Benigno Mercado who admitted that
FRANCISCO was his uncle. He claimed that he visited
FRANCISCO at the Hagonoy Municipal Jail when the investigation
was being conducted. He heard MARILYN state that “there was no
penetration, only touching by the accused.” He later admitted on
cross-examination that he did not hear the entire declarations of
MARILYN.^[12]

Both MARILYN and FRANCISCO took the witness
stand again as rebuttal witness and sur-rebuttal witness, respectively.

In its decision of 28 October 1998, the trial court^[13] convicted FRANCISCO. The
trial court believed the testimony of MARILYN that she was
sexually violated by accused FRANCISCO on the night of 25
December 1997. The trial court considered the testimony of
MARILYN‘s mother to have strengthened the girl’s testimony. The
positive identification of FRANCISCO and Dr. Aves’ findings or
physical evidence likewise “jibed and confirmed” MARILYN‘s
testimony “giving no reason to doubt that there was consummation of the sexual
intercourse.”

Against the damning evidence of the prosecution, the trial court considered
the defense’s denial a “self-serving negative evidence x which cannot stand
against the affirmative testimonies of prosecution witnesses.” The trial court
also brushed aside the insinuation of the defense that it was physically
impossible for FRANCISCO to commit the crime given the sleeping
positions of the protagonists, his alleged physical infirmity and
MARILYN‘s disclosure on cross-examination that “her shorts and
underwear were rolled down half-way above the knee and her legs were spread for
about one and one-half (1½) feet only.”

For the trial court, the first pretext had been amply refuted by the
declaration of MARILYN that she woke up to find
FRANCISCO sucking her nipples and inserting his male organ into
her vagina and supported by the mother’s testimony that she saw her husband on
top of MARILYN. Besides, the trial court added, rape can be
committed in the most unlikely places. Further, FRANCISCO had
on five previous occasions successfully imposed his evil intentions upon
MARILYN which could have “emboldened him to throw caution into
the winds” and to once again impose his lechery on the girl that Christmas
night. The trial court also rejected FRANCISCO‘s alleged
physical defect considering that it did not hinder him from working as a
fisherman and in siring a daughter with Felicidad. As to the third alleged
exculpating reason, the trial court declared that the fact that the shorts and
underwear were not completely removed from the legs or that the legs were just
one and one-half feet apart was not sufficient obstacle to a person bent on
perpetrating a criminal act. The trial court observed that “[i]t is conceded
from human experience that (under said circumstances) sexual intercourse would
be difficult, but (not) physically impossible if we consider that the victim was
initially asleep and when awakened, she was not in a position to resist.” It is
also likely that MARILYN did oversleep given her tender
age.

The trial court also noted the inconsistencies and contradictions in the
testimony of MARILYN, but concluded that the same failed to
override the sincerity and candor of the girl when she said she was raped for
she said in effect all that has to be said on the occasion. The trial court then
proclaimed that the presence of the special circumstance of relationship
indicated in Section 11 of R.A. 7659 qualified the rape which necessitated the
imposition of the death penalty. It found undisputed (1) MARILYN’S age, which
was about twelve (12) years old at the time of the commission of the crime as
evidenced by a birth certificate^[14] and
the lack of objection thereto by the defense; and (2)
FRANCISCO‘s relationship with MARILYN as
either that of a stepfather or common-law spouse of Felicidad by the defense’s
lack of objection to or denial of Felicidad’s testimony that
FRANCISCO is her husband.

The trial court also discarded as not fatal to the prosecution’s cause, the
absence in the Information of the exact words that “offender
FRANCISCO is the stepfather of 12-year old
MARILYN or common-law spouse of the parent of the latter” so as to
explicitly constitute the qualifying circumstance of relationship mentioned in
Section 11 of R.A. 7659. Thus, the dispositive portion reads as follows:

Wherefore, all premises considered, the Court resolves that the prosecution
has successfully undertaken its burden to prove the guilt of accused Julio
Francisco y Lopez beyond reasonable doubt. For having violated Article 335 of
the Revised Penal Code, as amended by Republic Act 7659 with the attendant
circumstance that “the victim is under eighteen (18) years of age and the
offender is a x x x stepfather, x x x or the common-law spouse of the parent of
the victim”, accused Julio Francisco y Lopez is hereby found GUILTY of the crime
of Rape as charged. Absent any circumstance that could mitigate the commission
thereof, he is hereby sentenced to suffer the Supreme Penalty of Death by lethal
injection.

In line with established jurisprudence, the said accused is also ordered to
indemnify the offended party Marilyn Perez in the sum of P50,000.00 for moral
damages.

With costs against the accused.

SO ORDERED.^[15]

In view of the penalty imposed, the case is brought on automatic appeal to
this Court pursuant to Article 47 of the Revised Penal Code, as amended by
Section 22 of R. A. 7659.

In his Appellant’s Brief, FRANCISCO attributes to the trial
court as errors (1) its finding that his guilt was proven beyond reasonable
doubt, (2) in giving credence to the inconsistent and incredible testimonies of
the prosecution witnesses, (3) in rejecting the defense’s exculpating evidence,
and (4) in imposing the death penalty despite the erroneous allegation in the
information of the special qualifying circumstance of relationship.

FRANCISCO then specifies the following testimonial
inconsistencies and contradictions as undermining the credibility of the
prosecution witnesses and the possibility of the crime having been
committed:

1. MARILYN was not sure whether she tapped her mother before
   or after FRANCISCO went on top of her.

2. She was uncertain whether her undergarments and shorts were removed or
   merely rolled-down the middle of her thighs.

3. She also equivocated on whether she was completely undressed when her mother
   found FRANCISCO in a coitus position atop her.

4. She claimed to have seen a whitish sticky substance discharged from
   FRANCISCO‘s penis although she said that the lights were off
   and the penis was being inserted into her when she awakened.

5. She claimed that FRANCISCO was wearing shorts with buttons
   while her mother claimed he was clad in briefs.

6. She said FRANCISCO asked her to masturbate him after he
   ejaculated – a claim that cannot be substantiated with true to life experience.

FRANCISCO also insists on the absence of the qualifying
circumstance of relationship considering that he was never married to Felicidad,
hence he could not be the stepfather of MARILYN. He was merely
the common-law spouse of Felicidad which detail was not alleged in the
information, hence he could not be convicted of qualified rape and be meted out
the death penalty, all in consonance with the Court’s ruling in People v.
Dimapilis.^[16]

The Office of the Solicitor General counters, however, that the
inconsistencies do not prove that the rape was not committed nor do they
depreciate the probative value of the overwhelming proofs adduced by the
prosecution of the fact of rape. MARILYN‘s positive
identification of FRANCISCO and her testimony that he was
sucking her nipples and inserting his private parts into hers when she woke up
on the date in question, as collaborated by the other evidence of the
prosecution particularly the medical findings of genital swelling and abrasions,
proved beyond reasonable doubt the guilt of FRANCISCO. The
defense of denial failed to overcome this clear and foregone conclusion.

The Office of the Solicitor General, however, agrees with
FRANCISCO that there is no qualified rape and opines that the
case falls squarely with or is similar to People v. Dimapilis. It
respectfully recommends the modification of the assailed decision with the
reduction of the penalty from death to reclusion perpetua. We affirm

FRANCISCO‘s conviction.

The issues raised herein primarily dealt with the credibility of the
prosecution witnesses particularly MARILYN.
FRANCISCO harps on the inconsistencies and contradictions in
the statements of MARILYN and her mother which allegedly cast
serious doubt on their credibility and the fact of the crime having been
committed. It is, however, jurisprudentially settled that findings of the trial
court on the credibility of witnesses are entitled great weight on appeal unless
cogent reasons are presented necessitating a reexamination, if not a disturbance
of the same; the reason being the former is in a better and unique position of
hearing first hand the witnesses and observing their deportment, conduct and
attitude.^[17]

A careful scrutiny of the records reveals no cogent reason requiring a
disturbance of the trial court’s findings. We agree with the trial court in
affording full credit and merit to MARILYN‘s testimony that she
was raped. The medical findings conclusively support the testimonial evidence of
rape. Besides, when a woman says that she has been raped, she says in effect,
all that is necessary to show that she has indeed been raped.^[18]

We likewise affirm the trial court’s conclusion that
FRANCISCO‘s impugnment of the prosecution’s evidence failed to
destroy the prosecution’s case. The inconsistent and conflicting statements
averred to in the Appellant’s Brief are not entirely irreconcilable with or even
material to the fact of rape.

Whether MARILYN tapped or touched her mother before or after
the rape is inconsequential. The truth is MARILYN reached out
to her mother in an attempt to wake her up and discover the disgusting deed
being perpetrated by her common-law husband. On the averment that
MARILYN prevaricated on whether her undergarments and shorts
were completely taken off or were merely rolled halfway down her thigh is again
trifling. Either situation could not have prevented a perverse and lecherous
mind from unleashing its lust on a hapless girl. Further, it is
jurisprudentially recognized that lust is no respecter of time and place and may
be committed even inside cramped quarters.^[19]

The other averred incredulous claims of MARILYN (seeing a
whitish sticky substance discharged by FRANCISCO even though
the lights were off and being required to masturbate FRANCISCO
after the fact of rape) and Felicidad (observing FRANCISCO as
clad in briefs) refer to irrelevant and trite matters that, it is reiterated
here, do not and could not disparage the credibility of the prosecution
witnesses to the extent of invalidating the entire prosecution’s case. For truth
be told, the defense’s efforts to shred the threads of coherence and congruity
that firmly bind the prosecution’s case appear futile, foolish and nugatory.

This Court thus discards the defense of denial interposed by
FRANCISCO. In so doing, we resort once again to the primordial
doctrinal predication, whose sagacity and truth remain as constant as the
progression of the years in which it has been applied, that denial, like alibi,
as an exonerating justification is inherently weak and if uncorroborated
regresses to blatant impotence. A mere denial, just like alibi, constitutes a
self-serving negative evidence which cannot be accorded greater evidentiary
weight than the declaration of credible witnesses who testify on affirmative
matters.^[20]

A careful scrutiny of FRANCISCO‘s other pretexts like the
imputation to Felicidad that she concocted the rape charge in reprisal of his
alleged inability to satisfactorily provide for the family needs discloses the
frivolity of the defense’s cause. On that specific item, however, we decree that
it is unnatural for a parent, more so, a mother to use her offspring as an
instrument of malice or retribution if it will subject her child to the
humiliation, disgrace and even stigma attendant to the prosecution of rape, if
she were not motivated solely and rightly by the desire to incarcerate the
person responsible for the child’s defilement if the same is not true.^[21] Felicidad precisely wanted
FRANCISCO behind bars because motherly concerns prevailed over
a love gone errant. She had already caught him previously sexually molesting
MARILYN and had known of the other sexual abuses he committed
which acts she had condoned but not the abomination committed on Christmas night
right next to her. In fact, FRANCISCO should be held culpable
for these previous acts of lechery if proven in separate cases.

In sum, it is clear that the prosecution persuasively discharged its onus of
proving the guilt of FRANCISCO beyond reasonable doubt. Despite
this affirmation of the trial court’s judgment of conviction, we, nonetheless,
agree with FRANCISCO‘s contention and that of the Office of the
Solicitor General that the death penalty cannot be imposed.

We agree that this case is similar to the factual settings of People v.
Dimapilis. In the informations of the instant case and in People v.
Dimapilis, the victims, who were below eighteen (18) years old, have been
stated as the stepdaughters of accused-appellants; yet, the evidence indubitably
show that accused-appellants are the common-law spouses of the victims’
mothers.^[22] In both instances, the
victims’ mothers are not married to accused-appellants. Both accused-appellants
cannot therefore be considered as the respective stepfather of the victims, for
that relationship presupposes a legitimate relationship, i.e., they
should have been legally married to the mothers’ victims. A stepfather is the
husband of one’s mother by virtue of a marriage subsequent to that of which the
person spoken of is the offspring; or, a stepdaughter is a daughter of one’s
spouse by a previous marriage or the daughter of one of the spouses by a former
marriage.^[23]

But notwithstanding the unequivocal proof at the trial of this case and in
People v. Dimapilis, of the special circumstance that accused-appellants
were the common-law spouses of the victims’ mothers, said relationship could not
be considered as such because it was not specifically alleged in the
information. Special qualifying circumstances indicated in the amendatory
provisions of Section 11 of R.A. 7659 must be specifically pleaded or alleged
with certainty in the information; otherwise the death penalty cannot be
imposed.^[24] to impose the death penalty
on the basis of relationship, which has not been alleged in the information,
would violate FRANCISCO‘s constitutional and statutory right to
be informed of the nature and the cause of the accusation against him.^[25]

With this favorable serendipity, FRANCISCO can only be
convicted of simple rape where the proper imposable penalty is reclusion
perpetua under the second paragraph of Article 335, now Article 266-A of the
Revised Penal Code, in view of the amendments of R.A. 8353^[26]and R.A. 7659. Nonetheless, this does not
preclude this Court from imposing, in addition to the moral damages already
decreed, civil indemnity in the amount of P50,000 which the trial court
inadvertently omitted.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the decision of 28 October
1998 of the Regional Trial Court of Bulacan, Branch 21 in Malolos, in Criminal
Case No. 529-M-98 convicting herein accused-appellant Julio Francisco y Lopez of
qualified rape is hereby MODIFIED. As modified, accused-appellant is hereby
declared guilty beyond reasonable doubt of simple rape as defined and penalized
under the new Article 266-A of Revised Penal Code pursuant to R.A. No. 8353,
sentenced to suffer the penalty of reclusion perpetua and ordered to pay
MARILYN PEREZ the amounts of P50,000 as civil indemnity and P50,000 as moral
damages.

Costs against accused-appellant.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.

^[2] TSN, 6 July 1998, 7.

^[3] Id. 8.

^[4] Id. 9.

^[5] Rollo, 6.

^[6] TSN, 8 July 1983.

^[7] Id., 3-4.

^[8] Id. 6.

^[9] Id., 2.

^[10] TSN, 17 July 1998, 4.

^[11] TSN, 23 September 1998 2-3.

^[12] Rollo, 14.

^[13] Per Judge Cesar M. Solis.

^[14] Original Records (OR), 151.
Marilyn was born on 24 May 1985.

^[15] Rollo, 18.

^[16] 300 SCRA 279 [1998].

^[17] People v. Alvero, G. R.
Nos. 134536-38, 5 April 2000, citing People v. Landicho, 258 SCRA 1
[1996]; People v. Villaviray, 262 SCRA 13, 18 [1996]; People v.
Leoterio, 264 SCRA 698, 617 [1996]; See also People v. Antolin, G.R. No.
133880, 12 April 2000.

^[18] People v. Gonzales G.R.
No. 133859, 24 August 2000.

^[19] People v. Docena G.R. Nos.
131894-98 20 January 2000, citing People v. Leoterio, 264 SCRA 608 [1996]
and People v. Escala, 292 SCRA 48 [1998]. See also People v.
Logarto and Cordero, G.R. Nos. 118828 & 119371, 29 February 2000.

^[20] People v. Alvero, G.R.
Nos. 134536-38, 5 April 2000.

^[21] People v. Alvero,
Supra note 20, citing People v. Silvano, G.R. No. 127356, 29 June
1999 and People v. Escobar, 281 SCRA 498 [1997].

^[22] See also People v. Poñado,
311 SCRA 529 [1999].

^[23] People v. Tolentino, 308
SCRA 485, 495 [1999].

^[24] People v. Ferolino G.R.
Nos. 131730-31, 5 April 2000.

^[25] People v. Bartolome, G.R.
No. 133987, 28 January 2000.

^[26] Otherwise known as the Anti-Rape
Law of 1997.