PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NORBERTO VILLAGRACIA, ELMER PAGLINAWAN, ALFONSO PASTORAL, NELSON LEDESMA, NIXON LEDESMA, AND WILFREDO V. GAMPA, ACCUSED-APPELL…

This is an appeal from the judgment rendered by the Regional
Trial Court, Branch 63, Calauag, Quezon in Criminal Case No. 1518-C, finding
Norberto Villagracia, Elmer Paglinawan, Alfonso Pastoral, Nixon Ledesma, Nelson
Ledesma, and Wilfredo V. Gampa guilty beyond reasonable doubt of Robbery with
Rape and sentencing them to suffer the penalty of reclusion perpetua,
to indemnify, jointly and severally, the offended spouses, Cenon Villasanta and
Thelma Villasanta in the amount of P14,700.00 and Thelma Villasanta in the
amount of P20,000.00, and to pay the costs of the suit (Decision, p. 16; Rollo,
p. 40).

In said criminal case, the five accused were charged with Robbery
with Rape, committed as follows:

“That on or about the 23rd day of September 1987, at Barangay
Pamampangin, Municipality of Lopez, Province of Quezon, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, armed with
short firearms of unknown caliber and a fan knife and forming a band, with
intent to gain and with force upon things, by means of force, intimidation and
violence and taking advantages of nighttime, conspiring and confederating
together and mutually helping one another, did then and there willfully,
unlawfully and feloniously enter the house of spouses Thelma Villasanta and
Cenon Villasanta, and once inside, take, steal and carry away therefrom the following personal properties, to wit:

Cash
money———————————————– P8,000.00

one (1) wristwatch
citizen—————————— 1,200.00

one (1) lady
wristwatch——————————— 1,000.00

two (2) wristwatch
(old model)———————— 3,000.00

two (2) wedding
ring————————————- 200.00

one (1) pair of
earrings———————————- 1,300.00

T o
t a l                                           14,700.00

with a total value of FOURTEEN THOUSAND
SEVEN HUNDRED (P14,700.00) PESOS, Philippine currency, to the damage and
prejudice of the said owners in the aforesaid sum; that on the occasion thereof
said accused, conspiring and confederating together and mutually helping one
another, by means of force, threats violence
and intimidation and with lewd design, did then and there willfully,
unlawfully and feloniously take turn in having carnal knowledge of said Thelma
Villasanta, against the latter’s will” (Rollo, pp. 8-9).

Upon arraignment, all the accused pleaded not guilty and trial
ensued.

On April 3, 1990 and before the judgment was promulgated, accused
Elmer Paglinawan died.

The trial court found that on
September 23, 1987, Thelma Villasanta arrived in Lopez, Quezon, from
Manila at about 8:00 A.M. Instead of
proceeding to her house in Barrio Pamanpangin, she stayed at the poblacion to attend to some business. She returned home at 8:00 P.M., bringing with her raw materials for her
basket weaving business. At that time,
her husband, Cenon, was sick and resting on the second floor of the house while
two basket-weavers, Eliseo Gacelo and Rodrigo Llaneta, were working overtime at
the ground floor, which was lighted by a Coleman gas lamp. Shortly after Thelma entered the house, six
men, with their faces half-covered by handkerchiefs barged inside. Three of the intruders brandished firearms and the other three carried knives. One poked a gun at her head and another
pointed a knife to her neck. The two
basket-weavers were told to lie down on the floor and were then hog-tied. One of the accused put off the gas
lamp. Two of the accused went upstairs and
hog-tied Cenon, after maltreating
him. They also divested Cenon of his
watch and ransacked the house (Decision, pp. 5-8; Rollo, pp. 29-32).

The accused were able to take P8,000.00 in cash, a pair of earrings, a wristwatch and two rings with a
total value of P14,700.00.

When the accused left the
house, they dragged Thelma along with them. Once on the street, the
accused removed their masks. They brought
Thelma to a grassy place, where she was ordered to undress. She was able to run away but was chased and
caught by her captors, who again pointed their guns and knives at her. Two of the accused held her hands and two
others held her legs. After Nelson
Ledesma removed her panty and half-slip, he raped her. The other six followed suit.

In the trial court, appellants interposed their respective alibis
and denials. They claimed that they
were in their respective houses when the incident happened. They also claimed that they were maltreated
by the police authorities and forced to confess their participation in the crime charged. Furthermore, they alleged that they were not
apprised of their constitutional rights before their statements were taken.

On the basis of the evidence presented, the trial court convicted
the accused of the crime charged. Likewise, the trial court considered the presence of the aggravating
circumstances of nighttime and band. In
their brief, appellants fault the trial court in finding:

I

“x x x THAT THE ACCUSED-APPELLANTS’ IDENTITIES AS THE PERPETRATORS
OF THE CRIME CHARGED WERE ESTABLISHED WITH CERTAINTY.

II

“x x x THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF ROBBERY WITH RAPE” (Appellants’ Brief, p. 7).

Appellants now claim that Thelma Villasanta failed to identify
them with certainty as the perpetrators of the crime charged. They contend that: (1) it was unnatural on their part to have removed their masks
outside the house, when they did not remove them while they were inside the
house, where it was pitch black; (2) it was improbable for her to have
recognized the appellants because the place where she was brought was dark and covered with bushes and
coconut trees; and (3) appellants were not placed in a police line-up but were
merely presented by the police investigators to the complainants (Appellants’
Brief, pp. 7-9).

Contrary to their claim, appellants’ removing of their masks once
they left the house of the
Villasantas was a natural
behavior. As explained by the trial
court:

“x x x The Court is also convinced that when the robbers left the
house of the Villasanta (sic) they removed their masks. This the Court finds convincing for indeed,
it would appear awkward for the robbers to be still wearing masks while they
were walking along the street” (Decision, p. 13; Rollo, p. 37)

Bereft of merit is the contention of the appellants that they
were merely presented by the investigators to the complainants. There is no rule requiring that before a
suspect can be identified as the culprit, he should first be placed in a police
line-up and then pinpointed by the victim. What is important is the positiveness of the victim that the persons
charged were the malefactors. Such
identification goes to the credibility of the witness which was tested at the
trial.

This positive identification of the victim was bolstered when
appellants removed their masks while walking on the street, for the place was
illuminated by moonlight. In People v. Gamboa, 145 SCRA 289 [1986], this Court ruled that the light of the
moon is sufficient for a person to identify another. Suffice it to say, “if identification of persons is possible even
by the light of the stars, with more reason that one could identify persons by
moonlight” (People v. Pueblos, 127 SCRA 746 [1984]).

Appellants defense of alibi cannot be given weight in view of the
clear identification made by the victim that they were the perpetrators of the
crime. Alibi is one of the weakest defenses that can be
resorted to for it can easily be
fabricated (People v. Carcedo, 198 SCRA 503 [1991]).

Appellants also failed to support their claim that they were
tortured into admitting the crime. Their allegation, except for Norberto Villagracia, was not supported by
any medical certificate. However, the
medical certificate submitted by Villagracia cannot be admitted as evidence in
the absence of the corroborating testimony of the physician who examined him
(People v. Marcedonio, 192 SCRA 579 [1991]).

The plaint that the police investigators did not provide
appellants with a counsel while their statements were taken, is mooted because the trial court disregarded said
statements for failure of the police investigators to inform them of their
right to counsel. The trial court also
disregarded the counter-affidavit of Pastoral because the same was prepared by
the police. However, even in the
absence of the extrajudicial confessions obtained from the appellants, there is
sufficient evidence which points to them as the perpetrators of the crime.

We have repeatedly ruled
that factual findings of the lower court, including the assessment of the
testimonies of the witnesses, are entitled to great weight on appeal when
supported by the evidence (People v. De Guzman, 199 SCRA 35 [1991]; People v.
Placido, Jr., 199 SCRA 410 [1991]).

We agree with the trial
court that the crime committed by the appellants is Robbery with Rape defined
and penalized under Article 294 (2) of the Revised Penal Code, which reads:

“Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:

The penalty of reclusion temporal in its medium
period to reclusion perpetua, when the robbery
shall have been accompanied by rape or intentional mutilation, or if by reason
or on occasion of such robbery, any of the physical injuries penalized in
subdivision 1 of Article 263 shall have been inflicted; Provided, however, that when the robbery accompanied with rape is committed with the use
of a deadly weapon or by two or more persons, the penalty shall be reclusion
perpetua to death (As Amended by PD No. 767).”

The law uses the phrase “when the robbery shall have been
accompanied by rape” which means that the offender must have the intent to take
the personal property belonging to another with intent to gain, and such intent
must precede the rape (Reyes, II Revised Penal Code, p. 612, 1987 ed).

In this case, appellants employed violence against and
intimidation of persons when they divested the Villasanta spouses of cash and
other valuables. Three of the
appellants were armed with short firearms and the other three carried fan
knives.

That appellants conspired to
commit the detestable acts can be inferred from their behaviors, which
revealed their common purpose and their unity in its execution (Siton v. Court
of Appeals, 204 SCRA 473 [1991]).

However, the trial court erred in finding the presence of the
aggravating circumstance of band. The
circumstance that the crime was committed with the use of a deadly weapon or by
two or more persons was already taken into account when the law imposed the
penalty of reclusion perpetua to death for such offense.

An appeal in a criminal case opens the whole case for review and this
includes the review of the penalty and indemnity (People v. Godines, 196 SCRA
765 [1991]). Every circumstance in
favor of the accused should be considered (Sacay v. Sandiganbayan, 142 SCRA 593
[1986]).

In this case, the trial court failed to consider the age of
appellant Nixon Ledesma when the crime was committed. At the time he testified on May 17, 1989, he stated that he was
only 15 years old (TSN, May 17, 1989, p. 31). No contradictory evidence was presented by the prosecution. So, when the crime was committed on
September 23, 1987, or more than a year before he was presented as a witness,
Nixon Ledesma was less than 15 years old.

In People v. Lugto, 190
SCRA 754 [1990], we held that the accused has the burden of proof that he was a
minor at the time of the commission of the crime. However, in People v. Tismo, 204 SCRA 535
[1991], we upheld appellants
claim that he was 17 years old at the time the crime was committed even without
any proof to corroborate his testimony. Considering that the prosecution failed to present contradictory
evidence, we applied to appellant therein the privileged mitigating
circumstance of minority under the second paragraph of Article 13 of the
Revised Penal Code.

Lugto appears to be an aberration from the long line of decisions
antedating it. From U.S. v. Bergantino,
3 Phil. 118 [1903] to People v. Ebora, 141 SCRA 282 [1963], we have
consistently ruled that, although the accused did not offer any evidence to
support his claim of minority, this fact will remain as such, until disproved
by the prosecution (See also U.S. v. Barbicho, 13 Phil. 616 [1909]; U.S. v.
Agadas, 36 Phil. 246 [1917]; People v.
Ebora, 141 SCRA 282 [1968]; People v. Bernalde, 139 SCRA 426 [1985]).

We, therefore, rule that in view of his minority, appellant Nixon
Ledesma is entitled to a two-degree reduction of his penalty as provided for in
Article 68(1) of the Revised Penal Code.

Inasmuch as Nixon Ledesma is now more than nineteen years old, he
is no longer entitled to a suspended sentence under Article 192 of the Child
and Youth Welfare Code, (P. D. 603, as amended by P. D. No. 1179 and P.D. No.
1210).

The penalty for Robbery with Rape under Article 294(2) of the
Revised Penal Code, is reclusion perpeta to death. However, the 1987 Constitution, proscribed
the imposition of the death penalty, so the trial court was correct in imposing the penalty of reclusion
perpetua to the appellants, other than appellant Ledesma.

With regard to Nixon Ledesma, the reduction of his penalty by two
degrees should be counted from the penalty provided by law for the offense,
which is reclusion perpetua to death. The penalty next lower to the said penalty imposed by law is recIusion
temporal and the penalty two degrees lower thereto is prision mayor
(People v. Espejo, 36 SCRA 400 [1970]; People v. Jose, 71 SCRA 273 [1976];
Padilla, Criminal Law, Book I, 1988 ed., p. 89).

Considering the presence
of the aggravating circumstance of nighttime, the penalty should be in its maximum
period, which is within the range of ten years and one day to twelve
years. Applying the Indeterminate
Sentence Law, we further reduce the penalty by one more degree, which is prision
correccional, and that is within the range of six months and one day to six years.

The records show that
Elmer Paglinawan died on April 3, 1990 while under detention. The fact of his death was reported by the
provincial warden to the trial court, which should have dismissed the case
against said accused. Under Article
89(1) of the Revised Penal Code, the criminal liability of an offender is
totally extinguished by his death as to the personal penalties; while the
pecuniary liability therefor is extinguished when the offender dies before
final judgment.

Taking into account the nature of the crime and the fact
that she was raped by the six accused, causing her mental anguish, moral shock,
besmirched reputation and social humiliation, the indemnity, in the concept of
moral damages, is increased to P50,000.00 (People v. Grefiel, 215 SCRA 596
[1992]).

WHEREFORE, the decision appealed from is AFFIRMED with
the MODIFICATION that: (1) Nixon
Ledesma is sentenced to an indeterminate penalty of six (6) years, of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
mayor, as maximum; (2) in view of Elmer Paglinawan’s death, the case
against him is DISMISSED; and (3) the award for damages to Thelma
Villasanta is increased to P50,000.00.

SO ORDERED.

Cruz, (Chairman), Griño-Aquino, Davide, Jr., and Bellosillo, JJ., concur.