PEOPLE OF THE PHILIPPINES PLAINTIFF-APPELLEE, V. BIENVINIDO UDANG, SR. Y SEVILLA, ACCUSED-APPELLANT.

People versus Udang

The Case

This is a criminal appeal in which the People of the Philippines, through the Office of the Solicitor General, seek to sustain the conviction of Bienvinido Udang, Senior, for sexually violating a minor, while the accused himself appeals his conviction for two counts of rape. The case matters because it forces the Supreme Court to separate two crimes that are often confused — rape under the Revised Penal Code and sexual abuse under the special law on child abuse — and to explain why charging both for a single act does not offend the constitutional bar against double jeopardy. It is a lesson in the elements of crimes, in the limits of an information, and in the difference between a felony and a special law.

Procedural History

Two informations for child abuse were filed against Udang before the Regional Trial Court of Cagayan de Oro City, each alleging sexual abuse of a fourteen year old minor in violation of Article 266-A in relation to Section 5, paragraph b, of Republic Act Number 7610. Udang pleaded not guilty to both, and a joint trial followed. The trial court, through a judge who did not personally hear all the witnesses, convicted him of two counts of rape under the first paragraph of Article 266-A of the Revised Penal Code, sentenced him to reclusion perpetua on each count, and ordered him to pay civil indemnity, moral damages, and exemplary damages. Udang appealed to the Court of Appeals, which affirmed the conviction in full. He then brought the case to the Supreme Court by notice of appeal, and the Court treated the briefs filed below as his briefs on appeal.

Facts

One evening in September 2002, the private complainant, then twelve years old, drank five bottles of rum with Udang's children at their house in Lumbia, Cagayan de Oro City. She became intoxicated, and later realized that Udang was carrying her into a dark room, where he laid her on the bed, undressed her, kissed her, and inserted his penis into her vagina. Afterwards, Udang left to report for duty as a barangay tanod, while she remained inside the house, too weak to move.

About a year and three months later, in December 2003, then thirteen years old, she again had drinks at Udang's house, this time with his son and with Udang himself. Feeling sleepy, she went into one of the rooms; Udang followed, went on top of her, undressed her, and inserted his penis into her vagina until he ejaculated. Again he left for his barangay tanod duty, and again she stayed behind, too tired to move.

In April 2004, she was examined by a physician at the Northern Mindanao Medical Center, who found old, healed hymenal lacerations and reddish scratched marks between her thighs and genitalia, which could have been caused by trauma, friction, infection, or sexual intercourse. The defense presented Udang, his daughter, and two fellow inmates of the complainant at the city jail, who testified that she had admitted to them that Udang did not rape her and that she had been pressured to charge him after he caused her arrest for sniffing rugby inside his house.

Issues

• Whether or not the conviction is valid although the judge who wrote the decision was not the judge who heard the witnesses testify.
• Whether or not charging the accused with both rape under the Revised Penal Code and sexual abuse under Republic Act Number 7610 for the same act violates his right against double jeopardy.
• Whether or not the accused may be convicted of rape when the informations charged only sexual abuse under Republic Act Number 7610.

Applicable Provisions

Article 266-A of the Revised Penal Code defines rape:

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; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority.

This is the felony under which the accused was convicted below, and whose elements the Court compares with the special law.

Section 5, paragraph b, of Republic Act Number 7610 defines child sexual abuse:

Section 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.

This is the special law under which the informations were actually filed, and it supplies the elements the Court must apply.

Article III, Section 21 of the Constitution states the guarantee against double jeopardy:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

This is the provision the trial court invoked, and which the Supreme Court now construes.

Ruling

On the first issue, the Court held that the conviction is valid. Ideally the same judge should preside over all stages, because the trial judge observes the deportment, the blush, the hesitation, and the tone of a witness. But death, retirement, resignation, transfer, or removal may intervene. Here the original judge compulsorily retired pending trial and was replaced. Since 1915, in United States versus Abreu, the Court has ruled that absent a law expressly prohibiting it, a judge may decide a case on evidence already taken, because the transcript of records is presumed to be a complete and authentic record of everything that transpired during trial. Jurisdiction is vested in the court, not in the judge.

On the second issue, the Court disagreed with the trial court and held that there is no double jeopardy. The first sentence of Article III, Section 21 speaks of the same offense, meaning offenses with identical essential elements; the second sentence speaks of the same act, punished by a law and an ordinance. Rape and sexual abuse are separate crimes with distinct elements. The force, threat, or intimidation, or the deprivation of reason or unconsciousness, required in rape is not the same as the coercion or influence required in sexual abuse. Consent is immaterial in sexual abuse, because the mere act of sexual intercourse with a child exploited in prostitution or subjected to other sexual abuse is already punishable; consent, on the other hand, exonerates an accused from rape. A single act may therefore give rise to multiple offenses.

On the third issue, the Court held that the accused could only be convicted of the crime charged. The informations charged sexual abuse under Section 5, paragraph b, of Republic Act Number 7610, not rape under the Revised Penal Code. He could not be convicted of rape under those informations. Examining the evidence, the Court found him guilty instead of two counts of sexual abuse, and reduced the penalty accordingly.

Doctrine

First, a single act may give rise to multiple offenses, and charging an accused with rape under the Revised Penal Code and sexual abuse under Republic Act Number 7610, where the offended party is a child twelve years old and above, does not violate the right against double jeopardy, because the two crimes have different essential elements.

Second, the right against double jeopardy under the first sentence of Article III, Section 21 protects against a second prosecution after acquittal, a second prosecution after conviction, and multiple punishments for the same offense; the second sentence bars a second prosecution for the same act punished by a law and an ordinance.

Third, an accused may be convicted only of the crime charged in the information; the conviction must conform to the allegations, and a court cannot convict of a felony different from the special law alleged.

Fourth, the retirement or replacement of the trial judge does not invalidate a decision based on the transcript of records, since jurisdiction belongs to the court and not to the judge.

Disposition

The appeal was affirmed with modification: Udang was found guilty of two counts of sexual abuse under Section 5, paragraph b, of Republic Act Number 7610, and the penalty of reclusion perpetua erroneously imposed for rape was reduced accordingly.

Remember This

Memorize this line: a single act may give rise to multiple offenses, and rape and sexual abuse are separate and distinct crimes with different elements. Examiners use this case to test double jeopardy, the elements of rape against sexual abuse, and the rule that conviction must follow the crime charged in the information.