REYNALDO DE CASTRO, PETITIONER, VS. HON. MANUEL B. FERNANDEZ, JR. IN HIS OFFICIAL CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF LAS PIÑAS CITY, BRANCH 254, METRO MA…

De Castro versus Fernandez

The Case

This is a petition for certiorari filed by Reynaldo de Castro against Judge Manuel Fernandez, Jr., in his capacity as presiding judge of the Regional Trial Court of Las Piñas City, Branch 254. The petitioner was charged with rape through sexual assault for inserting his finger into the genital of a seven-year-old girl, and he asked the Supreme Court to overturn the trial court's refusal to grant a reinvestigation and to amend the charge to acts of lasciviousness. The case matters for two reasons: it settles that the insertion of a finger into another person's genital constitutes rape through sexual assault under the amended Revised Penal Code, and it is a compact review of the remedies of certiorari and appeal, the hierarchy of courts, and the five-day period to demand a preliminary investigation.

Procedural History

On the evening of 11 June 2002, barangay tanods invited the petitioner to the barangay hall in connection with a complaint for sexual assault filed by the mother of the victim. The petitioner went without resistance. The next day, the barangay officials turned him over to the Las Piñas City Police Station, and on 13 June 2002 the police indorsed the complaint to the city prosecutor for inquest proceedings. A state prosecutor then issued a commitment order for his detention.

On 18 June 2002, State Prosecutor Napoleon Monsod filed an Information for rape before the Regional Trial Court of Las Piñas City. On 1 July 2002, the petitioner filed a Motion for Reinvestigation, asking the court to direct the Office of the Prosecutor to conduct a preliminary investigation under Rule 112, and also asking that the charge be amended to acts of lasciviousness, on the theory that fingering is not covered by Article 266-A, paragraph 2 of Republic Act No. 8353. In an Order dated 5 August 2002, the trial court denied the motion. The petitioner moved for reconsideration, and in an Order dated 28 August 2002, the trial court denied that too. The petitioner then went directly to the Supreme Court by petition for certiorari.

Facts

The victim was a seven-year-old girl. The Information alleged that on or about 11 June 2002, in Las Piñas City, the accused, with lewd designs, willfully, unlawfully and feloniously committed acts of sexual assault on the child by touching and inserting his finger into her vagina against her will and consent. The charge was laid under Article 266-A, paragraph 2 in relation to Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353 and Republic Act No. 7659, and in relation to Republic Act No. 7610.

The petitioner was brought to the barangay hall on the evening of 11 June 2002, turned over to the police the following day, and subjected to inquest proceedings on 13 June 2002. The Information was filed in court on 18 June 2002. On 20 June 2002, a representative of his eventual counsel requested copies of the pertinent documents in the case, and on 25 June 2002, his counsel entered his appearance.

Despite knowing of the filing, the petitioner waited until 1 July 2002 to ask for a reinvestigation. The trial court denied both his motion and his motion for reconsideration, and he challenged those orders directly before the Supreme Court.

Issues

• Whether or not the petition for certiorari under Rule 65 is the proper remedy to assail the interlocutory orders of the trial court.
• Whether or not the accused is entitled to a preliminary investigation in full accord with Rule 112 of the Rules on Criminal Procedure.
• Whether or not a finger constitutes an object or instrument in the contemplation of Republic Act No. 8353, such that its insertion into the genital constitutes rape through sexual assault.

Applicable Provisions

Section 7 of Rule 112 of the Rules of Court provides:

Section 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

This provision fixes the five-day period within which an accused arrested without a warrant may demand a preliminary investigation after the Information is filed, and it is the basis for the Court's finding of waiver.

Article 266-A, paragraph 2 of the Revised Penal Code provides:

Article 266-A. Rape; When and How Committed. Rape is committed x x x 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.

This is the provision under which the petitioner was charged, and the Court reads its words instrument or object as broad enough to include a finger.

Ruling

On the first issue, the Court dismissed the petition at the outset because the petitioner availed of the wrong remedy. He captioned his pleading as a petition for certiorari under Rule 65, yet he himself stated that the issues raised are pure questions of law, which properly fall under Rule 45. Certiorari lies only where a court has acted without or in excess of jurisdiction, or with grave abuse of discretion, and where there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law. The petitioner alleged no such circumstance. Moreover, following the hierarchy of courts, a special civil action for certiorari assailing an order of the Regional Trial Court should be filed with the Court of Appeals, not with the Supreme Court, and the petitioner raised no special reason or compelling circumstance to justify direct recourse. If treated instead as a petition for review under Rule 45, the petition would still fail, because only judgments or final orders that completely dispose of the case may be the subject of a petition for review, and the assailed orders were merely interlocutory. The petitioner should have proceeded to trial and, if the verdict were unfavorable, assailed the orders as part of an appeal from the final judgment. The petition also failed to comply with Rule 45 as to the documents that must accompany it: no duplicate original or certified true copy of the 28 August 2002 Order was submitted, and the petition did not state the date of receipt of that order, so timeliness was not shown.

On the second issue, the Court held that the petitioner is deemed to have waived his right to a preliminary investigation. Under Section 7 of Rule 112, if an Information is filed in court without a preliminary investigation, the accused may, within five days from the time he learns of its filing, ask for a preliminary investigation, and failure to do so within that period is a waiver. The Information was filed on 18 June 2002. On 20 June 2002, a representative of his counsel requested copies of the pertinent documents, and on 25 June 2002, his counsel entered his appearance. Yet the petitioner asked for a reinvestigation only on 1 July 2002, more than five days after he learned of the filing. He therefore waived the right.

On the third issue, the Court held that the petitioner is mistaken. Under the present law on rape, Article 266-A of the Revised Penal Code as amended by Republic Act No. 8353, and as interpreted in People versus Soriano, the insertion of one's finger into the genital of another constitutes rape through sexual assault. The prosecutor therefore did not err in charging the petitioner with rape under Article 266-A, paragraph 2.

Doctrine

A petition for certiorari under Rule 65 lies only where the court has acted without or in excess of jurisdiction, or with grave abuse of discretion, and where there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law. Following the hierarchy of courts, certiorari against an order of the Regional Trial Court is filed with the Court of Appeals, not the Supreme Court, absent a special and compelling reason.

A petition for review under Rule 45 reaches only judgments or final orders that completely dispose of the case. Interlocutory orders are not its proper subject; the accused must proceed to trial and raise them on appeal from the final judgment.

Under Section 7 of Rule 112, an accused arrested without a warrant who is charged by Information filed without a preliminary investigation must ask for a preliminary investigation within five days from the time he learns of its filing. Failure to do so is a deemed waiver of the right.

Under Article 266-A, paragraph 2 of the Revised Penal Code, as amended by Republic Act No. 8353, rape through sexual assault 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. The finger of the offender is such an instrument or object; its insertion into the genital constitutes rape through sexual assault, not merely acts of lasciviousness.

Disposition

The Supreme Court dismissed the petition and affirmed the Orders dated 5 August 2002 and 28 August 2002 of the trial court.

Remember This

Memorize this line: a finger is an instrument or object within the meaning of Article 266-A, paragraph 2, so its insertion into the genital is rape through sexual assault. Examiners use this case to test the five-day waiver rule under Section 7 of Rule 112 and the distinction between certiorari under Rule 65 and review under Rule 45 against interlocutory orders.