PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JERRY CANTUBA Y DEBLOIS, ACCUSED-APPELLANT.

At 4:00 o’clock in the afternoon of June 10, 1997, Belinda Lampas
arrived home from work to find her daughter Jennifer, said to be then five
years old, limping and holding her private part. “Bakit, anak?” she
asked, and after dressing Jennifer up and seeing her panty bloodied, Jennifer
narrated that their neighbor, Kuya
Jerry, brought her to the nearby house of his sister, made her lie down and
undressed her. Jennifer went on to tell
that Jerry “kantot” her.^[1]

Jennifer would more than two months later testify in court that
she was earlier playing in front of their house at Road 4, Dupax, Diliman
Quezon City that afternoon of June 10, 1997 when the neighbor she referred to
as Kuya Jerry, Jerry Cantuba
(accused-appellant), approached her, took her to his sister’s house nearby
which drew her to cry and scream for help, undressed her after which he
undressed himself and that he touched her, “[n]ot just [with] his hands but
also another part of his body,” she pointing to the male private part which he
inserted in her vagina.^[2] The
prosecution would later present the blood stained panty,^[3] dress,^[4]
and shorts^[5]
of Jennifer.

Belinda lost no time in going to the house of the purok leader, Ynigo, who was not around,
however. Ynigo’s daughter thereupon
accompanied her and Jennifer to Camp Crame that evening of June 10, 1997^[6]
where the latter was medically examined by Dr. Manuel Reyes, Medico-Legal
Officer of the Philippine National Police Crime Laboratory Service. Upon parting Jennifer’s labia majora and labia minora,
the doctor found a “congested vestibule and posterior fourchette and an
elastic, fleshy-type and markedly congested hymen with deep fresh bleeding
lacerations at 2 and 10 o’clock positions.” The doctor further found that the “external vaginal orifice admit[ted]
[the] tip of [his] smallest finger.” Specifically with respect to the fresh lacerations, the doctor inferred
that they were caused by the “[f]orcible insertion of a hard blunt object” such
as an erect penis, consistent with sexual intercourse which occurred less than
24 hours from the time of the examination. He thus concluded that his findings were “consistent with recent loss of
virginity”.

Still later on the same evening of June 10, 1997, Belinda sought
the assistance of one Dominador, a “BSDO in Balara,” who “arrested”
accused-appellant and brought him to Precinct 6 in Old Balara, Quezon City^[7]
where she executed her sworn statement^[8] and
assisted Jennifer in filing a complaint^[9]
against him.

Accused-appellant was accordingly charged by Jennifer with rape
before the Quezon City Regional Trial Court (RTC) allegedly committed as
follows:

That on or about the 10^th day of June 1997 in Quezon
City, Philippines, the said accused by means of force and intimidation, to wit:
by then and there wilfully, unlawfully and feloniously undress JENNIFER LAMPAY
Y AVILA, a minor, 5 years of age and thereafter have carnal knowledge with the
undersigned complainant against her will and without her consent.^[10]

When arraigned, accused-appellant pleaded not guilty. Trial ensued thereafter.

Belinda, and Dr. Reyes testified to the foregoing account as did
Jennifer as reflected earlier. In
addition, the prosecution presented Elvira Valismo, a clinical psychologist at
the Research and Study Center for Children who examined Jennifer about two
weeks after the alleged abuse, and who declared that Jennifer was not
communicative except with other children and was especially withdrawn from
adult males. Elvira further declared
that when Jennifer was confronted with questions regarding the incident, she
would turn silent, and that gauged from the Wexler Intelligence Skills for
Children, Jennifer was not functioning at the maximum level of her
intelligence. Elvira thus concluded
that Jennifer suffered from depression and trauma as a result of the abuse. ^[11]

Accused-appellant, 36 at the time he testified on direct examination
on February 3, 1998, a construction worker and a resident of 34 Dupax Street,
Diliman, Quezon City gave the following version:

At 10:00 o’clock in the morning of June 10, 1997, on seeing that
his neighbor of eighteen years Avelino Magno (Magno), a garbage collector, was
working by himself, “making hollow blocks and plastering the walls” of the
house of a neighbor-waiter Ricky Bautista at 43 Dupax Street, he decided to
lend Magno a hand, albeit he (accused-appellant) did not get paid for it.

Accused-appellant and Magno later took lunch at past noon, and an
hour or so later they resumed their work. At 4:00 o’clock in the afternoon, Magno went home while he proceeded to
the nearby house of Zaldy Salas (Zaldy) where the two watched television up to
6:00 in the evening. He then repaired
to his uncle’s house at 34 Dupax St. where he resided, about ten meters away
from Jennifer’s.^[12]

Magno corroborated accused-appellant’s testimony. He claimed, however, that after work was
done in the afternoon, he and accused-appellant both went to the house of Zaldy
where they watched television.^[13]

Accused-appellant foisted the theory of mistaken identity,
alluding to one Jerry Teves as the true perpetrator of the crime. By accused-appellant’s account, Teves, whom
Jennifer also called “Kuya Jerry,” is
a small man past 20 years, of medium build, good looking, and a cousin of
Jennifer’s father who used to live with them.^[14]

Accused-appellant’s brother, Joffrey Cantuba, related that he
shares a twenty four square meter two storey house at Road 44, Dupax St. with
his wife Celestina and four children, his brother Jay and his wife and their
four children, and his sister Rosalie and her husband and their five children.

Joffrey also related that their other sister, Rosemarie, died on
June 2, 1997 and was interred on June 8, 1997, two days before the incident in
question. The laundry having
accumulated on account of the family tragedy, his wife Celestina and his
brother’s wife spent the whole day of June 10, 1997 washing clothes just
outside their house, along the street. All the time that he fetched water for them from 9:00 o’clock in the
morning until 3:30 or 4:00 o’clock in the afternoon, he did not notice Jerry
enter their house.^[15]

Joffrey’s wife Celestina declared on the witness stand that on
June 10, 1997, she was washing clothes near the entrance of their house
from morning until afternoon during which she never saw his brother-in-law-
accused-appellant or Jennifer.^[16]

On rebuttal, Edna Bianes, a resident of 75 Dupax Street, Diliman,
Quezon City, testified that from 9:30 in the morning to 3:30 in the afternoon
of the day in question, she was washing clothes with Celestina near the
artesian well.

Also on rebuttal, Jennifer affirmed that it was
accused-appellant, and not Jerry “Teves” (whose real surname is “Obregon”), who
molested her.^[17]

On January 13, 1999, Branch 76 of the Quezon City RTC rendered
judgment finding accused-appellant guilty of rape and sentencing him to suffer
the death penalty:

WHEREFORE, finding the accused guilty beyond reasonable doubt of
rape described and penalized under ARTICLE 335 of the Revised Penal Code as
amended by Republic Act 7659, the court hereby imposes the death penalty on the
accused Jerry Cantuba. He is also
ordered to indemnify the offended party in the amount of P50,000.00 as moral
damages and to pay the costs.

SO ORDERED.^[18]

Accused-appellant now assigns the following errors on the part of
the trial court:

I

THE
TRIAL COURT ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME CHARGED.

II

EVEN ASSUMING THAT
APPELLANT IS TRULY GUILTY OF THE CRIME OF RAPE, NONETHELESS, THE TRIAL COURT
ERRED IN IMPOSING UPON HIM THE SUPREME PENALTY OF DEATH.^[19]

The Court entertains no doubt that Jennifer was a victim of
rape. Her candid testimony and that of
her mother, the medico-legal findings of the doctor which are reflected in his
Initial Laboratory Report^[20] and
Medico-Legal Report No. M-2063-9,^[21] and
the object evidence establish beyond reasonable doubt that she was raped.

Accused-appellant maintains his innocence, however. He points out that the house where Jennifer
was allegedly raped “swarmed with occupants” consisting of three couples and
their children. Were the claim of rape
true, he submits, the incident would have caught someone else’s attention. He adds that Jennifer, confronted by the
trauma of the incident, could have mistaken him for her other Kuya Gerry. Finally, he maintains that his alibi was amply corroborated by
Magno.

Accused-appellant’s appeal is bereft of merit.

There is no proof that the house where the offense was committed
was indeed swarming with people at the time of its commission. In any case, the Court has held that rapists
are not deterred from committing their odious act by the presence of people
nearby or the members of the family;^[22] that
lust does not respect time or place; and that rape is not only committed in
seclusion.^[23]

And Jennifer was on direct examination certain that it was
accused-appellant, not the other Kuya Gerry, who molested her:

Q.   Jennifer, you mentioned
that last time that you know a certain Jerry who is not the Jerry Cantuba in
the case.

Yes, maam.

In this Jerry that you said you know, the same person as Jerry
Cantuba?

No, maam.

Which of the Jerry touched you and raped you?

x x x

A     Jerry Cantuba.

ATTY. MORALES:

Q    Is this Jerry Cantuba the
same Jerry Cantuba you earlier pointed to? Is he the same one in the courtroom today?

A     Yes, maam.^[24]

Any nagging doubts on the true identity of the rapist were laid
to rest by Jennifer when on rebuttal she declared:

Q    Jennifer, you mentioned
the last time that you talked to the Judge and the people here that a certain
Jerry Cantuba molested you, is that correct?

A     Yes, maam.

Q    Now, how many persons
named Jerry do you know?

A     Two.

Q    Are these two persons
named Jerry in the courtroom today?

A     Yes.

Q    Would you like to show us
these two persons named Jerry?

A     Yes.

ATTY. MORALES:

Witness pointing to Jerry Cantuba and a person named Jerry Obregon.

Q    Jennifer, do you know the
family name of the other Jerry which is not Jerry Cantuba?

A     No, maam.

Q    Now, Jennifer, which of
these two Jerries molested you?

A     Jerry Cantuba.

Q    And who is Jerry Cantuba
again, which one?

A     (Witness pointing to
Jerry Cantuba)

ATTY. MORALES:

That will be all, your honor.^[25]

The alleged corroboration by Magno of accused-appellant’s
testimony with respect to accused-appellant’s whereabouts at 4:00 o’clock in
the afternoon of June 10, 1967 fails. For accused-appellant claimed that he proceeded to the house of Zaldy
where he watched television while Magno left for home, whereas Magno claimed
that the two of them proceeded to Zaldy’s house and both watched television.

The trial court thus correctly rejected not only
accused-appellant’s theory of mistaken identity but his alibi as well, giving
great weight to Jennifer’s heartrending testimony:

The Court listened carefully to her story told in brief, sometimes
unfinished sentences, the child evading the sight of the accused, prompting us
to hold the trial in chambers, with the accused just by the door. It was a candid moment of a very young
girl’s demeanors: she would lower her face, as if in shame, then would stop
answering questions as if in pain. It
seemed to the court that every recollection of the bits and pieces of the
incident inflicted upon her more hurt and sufferings that sear whatever is left
of her young life.

It is difficult to imagine that this young girl, already deprived
of her childhood and purity; bruised by her traumatic experience would falsely
point to the accused as her tormentor, if it were not the truth. The attempt of the accused to foist doubt
into the mind of the court by suggesting that it might be the other Jerry
(Teves/Obregon) who did it, proved insensible as the little girl stuck to her
earlier declaration pointing to Jerry Cantuba as the perpetrator of the
rape. And the court believed her. The court gives her narration full faith and
credence and rejects the alibi offered by the accused.^[26]

In People v. Marquez,^[27]
this Court ruled:

All told, the proffered alibi of accused-appellant can not stand
against the positive identification by the private complainant that he is the
culprit. Basic is the rule that alibi
which is easy to concoct can not prevail over the positive identification; what
is more, appellant utterly failed to prove that it was physically impossible
for him to be at the scene of the crime at the approximate time of its
commission. Consequently,
accused-appellant’s defense of alibi can not prosper. Indeed the revelation of an innocent child whose chastity was
abused deserves full credit, as the willingness of complainant to face police
investigation and to undergo the trouble and humiliation of a public trial is
eloquent testimony of the truth of her complaint. Stated differently, it is most improbable for a five-year old
girl of tender years, so innocent and so guileless as the herein offended
party, to brazenly impute a crime so serious as rape to any man if it were not
true.

Accused-appellant nevertheless argues that, even assuming that he
is guilty of rape, since the age of Jennifer was not sufficiently established,
the imposition of the death penalty was incorrect.

We agree.

Article 335 of the Revised Penal Code, as amended by Republic Act
No. 7659,^[28]
states:

Article 335. When and how rape is committed. – Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

3. When the woman is under
twelve years of age x x x.

The crime of rape shall be punished by reclusion perpetua.

x x x

The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:

x x x

4. when the victim is . . . a child below seven
(7) years old.

x x x

Just recently, this Court, in People of the Philippines v. Manuel Pruna y
Ramirez or Erman Pruna y Ramirez,^[29]
established a set of “guidelines in appreciating age as an element of the crime
or as a qualifying circumstance,” to wit:

1. The best evidence to
prove the age of the offended party is an original or certified true copy of
the certificate of live birth of such party.

2. In the absence of a
certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would
suffice to prove age.

3. If the certificate of
live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim’s
mother or a member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a.      If the victim is alleged to be below 3
years of age and what is sought to be proved is that she is less than 7 years
old;

b.      If the victim is alleged to be below 7
years of age and what is sought to be proved is that she is less than 12 years;

c.       If the victim is alleged to be below 12
years of age and what is sought to be proved is that she is less than 18 years.

4. In the absence of a
certificate of live birth, authentic document or the testimony of the victim’s
mother or relative concerning the victim’s age, the complainant’s testimony
will suffice provided that it is expressly and clearly admitted by the accused.

5.             It is the prosecution that has the burden of proving the
age of the offended party. The failure
of the accused to object to the testimonial evidence regarding age shall not be
taken against him.

6. The trial court should
always make a categorical finding as to the age of the victim.

Applying the foregoing guidelines in the Pruna case, this Court held that therein
accused-appellant could only be sentenced to suffer the penalty of reclusion perpetua since:

In the present case, no birth certificate or any similar authentic
document, such as a baptismal certificate of LIZETTE, was presented to prove
her age. x x x.

However, the Medico-Legal Report relied upon by the trial court
does not in any way prove the age of LIZETTE, for there is nothing therein
which even mentions her age. Only
testimonial evidence was presented to establish LIZETTE’s age. Her mother,
Jacqueline, testified [that the victim was three years old at the time of the commission
of the crime].

x x x

Likewise, LIZETTE testified on 20 November 1996, or almost two
years after the incident, that she was 5 years old. However, when the defense counsel asked her how old she was on 3
January 1995, or at the time of the rape, she replied that she was 5 years
old. Upon further question as to the
date she was born, she could not answer.

For PRUNA to be convicted of rape in its qualified form and meted
the supreme penalty of death, it must be established with certainty that
LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the
death penalty, especially its irreversible and final nature once carried out,
makes the decision-making process in capital offenses aptly subject to the most
exacting rules of procedure and evidence.

In view of the uncertainty of LIZETTE’s exact age, corroborative
evidence such as her birth certificate, baptismal certificate or any other
authentic document should be introduced in evidence in order that the
qualifying circumstance of “below seven (7) years old” is appreciated against
the appellant. The lack of objection on
the part of the defense as to her age did not excuse the prosecution from
discharging its burden. That the
defense invoked LIZETTE’s tender age for purposes of questioning her competency
to testify is not necessarily an admission that she was below 7 years of age
when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and
hence the death penalty cannot be imposed on him.

However, conformably with no. 3 (b) of the foregoing guidelines,
the testimony of LIZETTE’s mother that she was 3 years old at the time of the
commission of the crime is sufficient for purposes of holding PRUNA liable for
statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335,
as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph
thereof, having carnal knowledge of a woman under 12 years of age is punishable
by reclusion perpetua. Thus, the penalty to be imposed on PRUNA
should be reclusion perpetua, and not
death penalty.

In the case at bar, the only evidence of the age of Jennifer is
her testimony and that of her mother Belinda. Both testified that Jennifer was five years old. Notably, the questions did not refer
specifically to Jennifer’s age at the time of the rape on June 10, 1997. When she testified on July 23, 1997, Belinda
stated:

Q    How old is your daughter
Jennifer?

A     Five years old, sir.^[30]

In her testimony of August 27, 1997, Jennifer declared:

Q    How old are you?

A     Five.^[31]

Conformably with Pruna,
accused-appellant can be held liable for statutory rape but the death penalty
cannot be imposed upon him.

In accordance with jurisprudence, the amount of P50,000.00
as civil indemnity is awarded to the offended party, apart from the amount of P50,000.00
as moral damages.^[32]

Finally, the Court notes that as recorded in the transcript of
stenographic notes, Jennifer identified herself as “JENNIFER LAMPAS,”^[33] and her mother Belinda’s surname appear
there too as “LAMPAS.”^[34] On the other hand, the complaint-information
identified the offended party as “JENNIFER LAMPAY Y AVILA,”^[35]
albeit the signature therein of her mother above the typewritten name Belinda
Lampas y Avila, appears to read “Lampas.” The discrepancy or error is undoubtedly merely typographical. Accused-appellant can be convicted under the
complaint-information without affecting his substantial rights since the
offended party is sufficiently identifiable.

WHEREFORE, the Decision of the Regional Trial Court of
Quezon City is AFFIRMED with MODIFICATION. Accused-appellant Jerry Cantuba y Deblois
is found GUILTY of simple Rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the offended party,
Jennifer Lampas, the amount of P50,000.00 as civil indemnity and P50,000.00
as moral damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona,
Callejo, Sr., and Azcuna, JJ., concur.

Austria-Martinez, J., on leave.

---

^[1]
TSN July 23, 1997, pp. 3 – 11.

^[2]
TSN, August 20, 1997, pp. 2-5.

^[3]
Exhibit “H”; “H-1”.

^[4]
Exhibit “F”.

^[5]
Exhibit “G”.

^[6]
TSN, July 23, 1997, pp. 12 – 14.

^[7]
TSN, July 23,1997, pp. 16-19.

^[8]
Exhibit “B”, Records, p. 153.

^[9]
Records, p. 4.

^[10]
Complaint, Records, p. 151.

^[11]
TSN, September 15, 1997, pp. 2-7.

^[12]
TSN, February 3, 1998, pp. 3-5.

^[13]
TSN, March 18, 1998, pp. 3 – 11.

^[14]
TSN, February 3, 1998, pp. 6-7; TSN, February 24, 1998, pp. 4-5.

^[15]
Id., at 5-9.

^[16]
TSN, November 3, 1998, pp. 4-8.

^[17]
Id., at 9-10.

^[18]

^[19]

^[20]

^[21]

^[22]
People v. Sancha, 324 SCRA 646 (2000).

^[23]
People v. Lapiz, 339 SCRA 655 (2000).

^[24]
TSN, September 8, 1997, pp. 2 – 3.

^[25]
TSN, November 10, 1998, pp. 9-10.

^[26]
Records, pp. 146-147.

^[27]
347 SCRA 510 (2000).

^[28]
an act to impose the death penalty on
certain heinous crimes, amending for that purpose the Revised Penal Code, as
amended, other special penal laws, and for other purposes. This was the law in force when the rape
was committed on June 10, 1997. Subsequently, on October 22, 1997 the law on rape was amended by RA No. 8353 and re-numbered Articles
266-A, 266-B, 266-C and 266-D under Chapter Three, Title Eight of the Revised
Penal Code (Crimes Against Persons).

^[29]
G. R. No. 138471, October 10, 2002.

^[30]
TSN, July 23, 1997, p. 3.

^[31]
TSN, August 27, 1997, p. 2.

^[32]
People vs. Veloso, 330 SCRA 602 (2000).

^[33]
TSN, August 20, 1997, p. 2.

^[34]
TSN, July 23, 1997, p. 2.

^[35]
Records, p. 151.