GR 232500 CAguioa (Digest)
G.R. No. 232500 , July 28, 2020
People of the Philippines, Plaintiff-Appellee, vs. ZZZ, Accused-Appellant.
FACTS
This is a Concurring and Dissenting Opinion by Justice Caguioa. The accused-appellant was convicted of multiple crimes. The ponencia (main decision) affirmed his guilt but modified the nomenclature and penalty for Criminal Cases Nos. CR-08-9183, CR-08-9184, and CR-08-9185 to “lascivious conduct under Section 5(b), Republic Act No. 7610 ,” imposing the penalty of reclusion perpetua. The Informations in these cases alleged that the victim was the accused’s 14-year-old daughter but did not allege that she was a child “exploited in prostitution or subjected to other sexual abuse” (EPSOSA). No evidence was presented during trial that the victim indulged in lascivious conduct for money, profit, any consideration, or due to coercion or influence of an adult.
ISSUE
Whether the accused-appellant should be convicted for “Lascivious Conduct” under Section 5(b) of Republic Act No. 7610 , or for “Acts of Lasciviousness” under the Revised Penal Code, for Criminal Cases Nos. CR-08-9183, CR-08-9184, and CR-08-9185.
RULING
Justice Caguioa dissents from the ponencia on the modification of the crimes in Criminal Cases Nos. CR-08-9183, CR-08-9184, and CR-08-9185. He maintains that Section 5(b) of RA 7610 applies only in specific instances where the child-victim is EPSOSA. For a conviction under this provision, it is essential to prove: (1) the act of sexual intercourse or lascivious conduct; (2) the act is performed with a child “exploited in prostitution or subjected to other sexual abuse”; and (3) the child is below 18 years old. The element of the victim being EPSOSA is separate and distinct and must be both alleged in the Information and proved during trial to trigger the higher penalty. In this case, the Informations lacked such an allegation, and no evidence was presented to prove it. Therefore, the accused-appellant’s conviction for these cases should only be for Acts of Lasciviousness under Article 266-A(2), in relation to Article 336 of the Revised Penal Code, with the corresponding penalty within the range of arresto mayor to prision correccional, not reclusion perpetua under RA 7610.
Justice Caguioa concurs with the ponencia in affirming the accused-appellant’s guilt for the crimes charged and fully concurs with the affirmance of his conviction in Criminal Cases Nos. CR-08-9135, CR-08-9136, and CR-08-9180 for violations of RA 9262 and qualified rape.