THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NENITO C. FERRER ALIAS CHITO, RODOLFO ZULUETA ALIAS BOY NEGRO AND NELSON MAICO Y HIDALGO ALIAS DENNIS, DEFENDANTS-APPELLANTS.

Before this Court on
automatic review is the judgment of the defunct Court of First Instance of Bulacan, Branch VI, in Criminal Case No. 3381-M, the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered, finding all the
accused, Nenito C. Ferrer
alias Chito, Rodolfo Zulueta
alias Boy Negro and Nelson Maico y Hidalgo alias
Dennis, guilty beyond reasonable doubt of the complex crime of robbery with
rape (multiple rape), with the use of deadly
weapons or by two or more persons, and without any mitigating circumstance but
with the aggravating circumstances of night time, band, superior strength to
ensure impunity, unlawful entry and use of vehicle, and hereby sentences said
accused to the maximum penalty of DEATH.

“On the civil aspect of the case, all the accused are ordered
to restitute the properties stolen as enumerated in the first amended
information, and in default thereof, to indemnify jointly and severally the
offended party Teresa Estrella y Santos the sum of
P176,250.00, the value of the jewelries, money and other items stolen, less the
amount of P7,000.00 representing the value of a GP wrist watch which was
recovered and returned to the said offended party; to jointly and severally
indemnify the offended party Lena Estrella the sum of
P50,000.00 as moral damages by reason of the sexual assault on her person by
the three accused, and the costs of this suit.

“For their services as counsel de oficio
for the herein accused, Attys. Isabelo V. L. Santos,
Rodolfo S. Pasamba, Herminia
V. Pasamba, Pablo C. Cruz are hereby awarded P200.00
each; Atty. Cesar M. Solis, a former Fiscal, and Atty. Lucenito
N. Tagle, who had shown extraordinary concern for the protection of the
rights of the herein accused, the sum of P1,500.00
each, subject however to the availability of funds.

“Let the entire records of this case be transmitted to the
Honorable Supreme Court of the Philippines
for automatic review, in accordance with law.

“SO ORDERED.” (pp. 28-29, Rollo)

About twelve o’clock
midnight, August 15, 1979, appellants Nenito C. Ferrer, Rodolfo Zulueta and
Nelson Maico and one Agapito
Maico entered the house of complainant Teresa Estrella in Guiguinto, Bulacan, by forcibly bending one of the iron grills in the
front jalousie windows, and with faces covered with handkerchiefs and armed
with a .38 revolver and a long knife, forced Narciso,
one of the children of Mrs. Estrella to knock at the
master’s bedroom where Mrs. Estrella and her second
husband Bernardo Alejo were sleeping.  Lena Estrella was
sleeping in her own room and was awakened by a heavy knock at the door.  She stood up and saw her mother, Mrs. Estrella, accompanied by two armed men and they, together
with the other members of the household, were brought to the master’s bedroom
where Bernardo Alejo
was.  They were gagged with pieces of cloth and hogtied with electric cords.  Thereafter, appellant Rodolfo Zulueta demanded money and jewelry from Mrs. Estrella, with threat that one of her sons or members of
the family would be taken as hostage if she would not comply.  Frightened, Mrs. Estrella
yielded to appellants jewelry worth more than P100,000.00
and cash money amounting to P17,000.00. 
Rodolfo Zulueta then brought Lena Estrella, aged 14, to her room and armed with a Caliber .38
gun, removed one of the straps of the duster Lena was
wearing.  Lena
pushed him off but Zulueta poked the gun at her and
told her to do what she was told, otherwise, he would harm every member of the
household.  He removed her other strap
and touched her breast.  Lena
pushed Zulueta away from her again but he removed her
underpants and his own clothes, then placed himself on top of her and succeeded
in sexually abusing her.  Appellants Maico and Ferrer also had carnal
knowledge with Lena following which they brought her to the
master’s bedroom and like the rest, her hands were tied at the back and she was
made to lie down with her face towards the floor.

About four o’clock in the morning, appellants boarded the car
of Mrs. Teresa Estrella who was ordered to drive them
to Manila.  Two
of the appellants alighted at the corner of Mayon Street and España
Extension, while the other two got-off at Roxas Boulevard.

The matter was reported
at once to the police authorities of Guiguinto and
Pat. Tomas de Armas conducted the investigation.  Lena was
physically examined by Dr. Ruperta Caluag who found the victim in shock and slightly
apathetic, with a swelling in her vagina. 
Dr. Caluag’s report, in part, reads:

“x x x
last mens, June
2, 1979, irregular; Internal Exam: 
Hymen lacerated at 7-9 o’clock position, no bleeding but edges with
lacera­tion, fresh.” (Exhibit “W-1”)

The information filed by
the Provincial Fiscal of Bulacan against appellants
for the crime of robbery with multiple rape in the then Court of First Instance
of Bulacan, docketed as Criminal Case No. 3381-M,
reads:

“x x x             x x x                 x x x

“That on or about the 15th day of August 1979, in the
municipality of Guiguinto, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Nenito C. Ferrer alias Chito, Rodolfo Zulueta alias Boy Negro and Nelson Maico
y Hidalgo alias Dennis, together with Agapito Maico y Hidalgo alias Jon-Jon and alias Oreng
Manguerra who are still at large, armed with a gun
and bladed weapon, conspiring and confederating together and mutually helping
one another, did then and there wilfully, unlawfully
and feloniously, with intent of gain and by means of violence, threats and
intimidation enter the house of one Teresa Estrella y
Santos, and once inside, take, rob and carry away with them the following
properties, to wit:

with a total value of P176,250.00,
belonging to the said Teresa Estrella y Santos, to
the damage and prejudice of the latter in the said sum of P176,250.00 and that
simultaneously or during the commission of the robbery, the said accused Nenito C. Ferrer alias Chito, Rodolfo Zulueta alias Boy
Negro and Nelson Maico y Hidalgo alias Dennis
conspiring with their other co-accused, by means of violence, threats and
intimidation and with lewd design have carnal knowledge of one Lena Estrella, daughter of Teresa Estrella
y Santos, alternately, against her will and by means of force.” (pp. 4-5, Rollo)

Upon arraignment, Rodolfo
Zulueta, Nenito Ferrer and Nelson Maico, all
pleaded guilty.  Nonetheless, the trial
court received the evidence of the prosecution “to satisfy itself that the
crime was really committed as charged.” (p. 8, Rollo)

In finding appellants
guilty of the crime charged, the trial court stated in its decision –

“There is no doubt from the testimonies of the witnesses
presented by the prosecution that there was a robbery and multiple rapes
committed by the three accused, each one taking Lena Estrella,
to her room and there sexually abusing her over her implorings
and resistance of the victim.  All the
four malefactors including the three herein accused who entered the house of
the victim, Teresa Estrella, were armed with gun and
knife.  The only require­ment under the
amendment under PD 767, Sec. 1, is that
two or more persons committing the robbery with rape must be armed with
a deadly weapon.  Here four of the
malefactors were armed and each of the three accused used either
a gun or a knife, all deadly weapons.

“The proper penalty therefore is reclusion perpetua
to death.

“However, the evidence also shows that aggravating
circumstances were attendant in the commission of the offense, which the Court
enumerates as follows:

“1.  The crime was committed in the dead of the
night, 12:00 midnight, and ended when the malefactors ordered Mrs. Estrella to drive them to Manila
on her car at 4:30 o’clock of the
same morning.

“2.  The crime was committed by a band.  All the four accused, Rodolfo Zulueta, Nenito Ferrer, Nelson Maico, and one
person still at large, were armed with a gun and kitchen knives, who acted
together during the commission of the crime. 
This qualifies the robbers, including the one still at large, as a band.

“3.  Advantage was taken of superior strength, or means
employed to weaken the defense.  Here,
the accused, acting in concert, all hogtied the members of the household of
Mrs. Estrella, except Mrs. Estrella and Lourdes Gonzales, which
weakened the defense that the victims may make. 
Superior strength was also employed. 
A household where the only man old enough to make a defense who was
surprised in his sleep when his wife wakened him up, after the latter was
threatened with the possible death of his son Narciso
who was held by one of the accused by the neck and who was ordered by the
accused to knock at his mother’s room, can not be a match to four armed men who
had conspired to rob them.

“4.  The crime was committed after an unlawful
entry.  The grills of the window at the
front of the house were bent with the use of a stout piece of wood, and the glass jalousies were broken by Boy
Negro or Rodolfo Zulueta, who used the same to
enter the house and open the door for
his other companions to come in.

“5.  The malefactors used the car of Mrs. Teresa Estrella with her acting as driver, to escape from the
scene of the crime after commission thereof, up to España
corner Mayon Street,
where two of the accused alighted, and at Dewey
Boulevard (Roxas Boulevard) where the
last two accused also alighted.

“On the other hand, the plea of guilty of all the accused made
several times in court, cannot be considered as mitigating to offset the
aggravating circumstances above enumerated, because the pleas of guilty were
made after the presentation of the testimony of the witness Lourdes Gonzales
and part of the testimony of Teresa Estrella had
already been made by the prosecution.” (pp. 25-27, Rollo)

It is the submission of
the appellants that while they admit to have committed the crime of robbery
they vehemently deny having raped Lena Estrella, and
thus, there was an error on the part of the trial court to have sentenced them
to suffer the maximum penalty of death and to indemnify the said offended party
in the amount of P50,000.00 as moral damages.

We are not persuaded.  Appellants, on arraignment, pleaded guilty to
the information for robbery with multiple rape after
the trial court had repeatedly appraised them of the consequences of their
admissions of guilt.  Besides, Lena Estrella, a child in her early teens, testified on how she
was sexually abused by appellants Rodolfo Zulueta, Nenito Ferrer and Nelson Maico.  She had no
ill motive in testifying against them and would not publicly proclaim her
dishonor were she not actually ravaged by them. 
As stated in US vs. Ramos, 1 Phil. 81, “when a woman testifies that
she has been raped she says, in effect, that all that is necessary to
constitute the commission of this crime has been committed.” The testimony
of Lena was corroborated by Dr. Ruperta
Caluag who examined her and found lacerations in her organ “to
be fresh and swelling.” In People vs. Selfaison,
1 SCRA 235, We held that “the lacerations in the
hymen and the contusions on the walls of the labia minora
of the genitals of the complainant show that the copulative act had been
penetrated by means of force and
violence.”

The imposable penalty for the crime of robbery with rape is
reclusion perpetua to death.  In the case at bar, the aggravating
circumstances of night time to facilitate the commission of the offense; the
use of motor vehicle to facilitate their escape, and the use of means employed
to weaken the defense – all members of Estrella
household were hogtied by electric cords and gagged with pieces of clothes –
all having been proved during the trial, the proper penalty is death under
Article 63 of the Revised Penal Code. 
However, for lack of necessary votes the death penalty is commuted to
reclusion perpetua.

WHEREFORE, with the modification in the sense that
appellants Rodolfo Zulueta, Nenito
C. Ferrer and Nelson Maico
are to suffer the penalty of reclusion perpetua, the
appealed decision is AFFIRMED in all other respects.

SO ORDERED.

Fernando, C.J., Aquino, Guerrero, and Escolin, JJ., concur.

Teehankee, J., on leave.

Makasiar, J., for Death penalty.

Concepcion, Jr., J., took no part.

Abad Santos, J., votes for the imposition of the death penalties.

De Castro, J., on sick leave.

Melencio-Herrera, J., votes to affirm the judgment of the Lower Court, in toto.

Plana, J., the circumstances of the case more than justify affirmance
of the judgment and review.

Gutierrez, Jr., J., votes to
affirm the appealed judgment.