G.R. No. 240229 , June 17, 2020
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NIEL RAYMOND A. NOCIDO, ACCUSED-APPELLANT.

FACTS

The case involves the appeal of accused-appellant Niel Raymond A. Nocido from his convictions. The ponencia (main decision) affirmed his guilt for the crimes charged. However, it modified the nomenclature of one crime from “rape by sexual assault” under the Revised Penal Code (RPC) to “lascivious conduct under Section 5(b), Republic Act No. 7610 ” (RA 7610), and consequently increased the applicable penalty.

ISSUE

Whether the accused-appellant should be convicted of “lascivious conduct under Section 5(b) of RA 7610” or “rape by sexual assault under Article 266-A(2) of the RPC, as amended by RA 8353” for the act subject of Criminal Case No. 09-1773.

RULING

Justice Caguioa, in a Concurring and Dissenting Opinion, concurred with the affirmance of guilt but dissented on the modification of the crime and the penalty increase. The ruling of the opinion is as follows:
1. Conviction for Criminal Case No. 09-1773: The accused-appellant should be convicted of Rape by Sexual Assault, defined and punished under Article 266-A(2) in relation to Article 266-B of the Revised Penal Code, as amended by RA 8353, and not Lascivious Conduct under Section 5(b) of RA 7610.
* Reason: Section 5(b) of RA 7610 applies only in specific instances where the child victim is “exploited in prostitution or subjected to other sexual abuse” (EPSOSA). For a conviction under this provision, it is essential to prove that: (a) the accused committed the act; (b) the act was performed with a child who is EPSOSA; and (c) the child is below 18 years old. The element of being EPSOSA is separate and distinct from mere minority. To impose the higher penalty under Section 5(b), it must be both alleged in the Information and proved during trial that the child indulged in the act for money, profit, consideration, or due to coercion/influence of an adult.
* Application to the Case: In this case, the Information only alleged that the victim was a 12-year-old minor but did not allege that she was EPSOSA. Furthermore, no evidence was presented to prove she indulged in the act for consideration or due to coercion. Therefore, the essential element for Section 5(b) of RA 7610 is absent.
2. Penalty for Criminal Case No. 09-1773: The proper penalty should be within the range of prision correccional to reclusion temporal (after applying the Indeterminate Sentence Law), and not the higher range of prision mayor to reclusion temporal as stated in the ponencia‘s footnote, nor the range of reclusion temporal in its medium period to reclusion perpetua under Section 5(b) of RA 7610.
3. Conviction for Criminal Case No. 09-1772: The opinion fully concurs with the ponencia in affirming the conviction for Rape by Sexual Intercourse under Article 266-A(1)(a) in relation to Article 266-B of the RPC, as amended.