G.R. No. 193960
Januar Jan uary y 7, 2013
KARL O ANGELO DABALOS y SAN DIEGO, KARLO DIEGO, Petitioner, vs. REGIONAL TRIAL COURT,BRANCH 59, ANGELES CITY (PAMPANGA), REPRESENTED REPRES ENTED BY ITS PRESIDING PRESIDING JUDGE MA. ANGELICA A NGELICA T. PARASPA RASQUIAMBAO; QUIAMB AO; THE OFFICE OF THE CITY CITY PROSECUTOR, PROSECUTOR, ANGELES CITY 1 (PAMPANGA);; AND (PAMPANGA) A ND ABC, ABC , Respondents. DECISION PERLAS-BERNABE, J.: The Court will not read into Republic Act (RA) No. 9262 a provision that would render it toothless in the pursuit of the declared policy of the State to protect women and children from violence and threats to their personal safety and security. Before the Court is a petition for certiorari and prohibition assailing the Orders dated September 13, 2010 2 and October 5, 2010 3 of the Regional Trial Court (RTC) of Angeles City, City, Branch 59 59 in Criminal Case No. 09- 5210 which denied petitioner’s Motion for Judicial Determination of Probable Cause with Motion to Quash the Information. The Facts Petitioner was charged with violation of Section 5(a) of RA 9262 before the RTC of Angeles City, City, Branch 59, 59, in an Information Information which states: states: That on or about the 13th day of July, 2009, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the boyfriend of the complainant, x x x did then and there willfully, unlawfully and feloniously use personal violence on the complainant, by pulling her hair, punching complainant’s back, shoulder and left eye, thereby demeaning and degrading the complainant’s intrinsic int rinsic worth and dignity as a human being, in violation of Section 5(a) of the Republic Act 9262. 9262 .4 After examining examining the supporting evidence evidence,, the RTC found found probable probable cause and and consequently, issued a warrant of arrest against petitioner on November 19, 2009. The latter posted a cash bond for his provisional liberty and on August 12, 2010, filed a Motion for Judicial Determination of Probable Cause with Motion to Quash the Information. Petitioner averred that at the time of the alleged incident on July 13, 2009, he was no longer in a dating relationship with private respondent; hence, RA 9262 was inapplicable. In her affidavit, private respondent admitted that her relationship with petitioner had ended prior to the subject incident. She narrated that on July 13, 2009, she sought payment of the money she had lent to petitioner but the latter could not pay. She then
inquired from petitioner if he was responsible for spreading rumors about her which he admitted. Thereupon, private respondent slapped petitioner causing the latter to inflict on her the physical injuries alleged in the Information. The RTC Ruling The RTC denied petitioner’s motion. It did not consider material the fact that the parties’ dating relationship had ceased prior to the incident, ratiocinating that since the parties had admitted a prior dating relationship, the infliction of slight physical injuries constituted an act of violence against women and their children as defined in Sec. 3(a) of RA 9262. Issues Hence, the instant petition raising the following issues: 1) whether the RTC has jurisdiction jurisdictio n over the the offense; offense; 2) whether whether RA 9262 should be construed construed in a manner that that will favor the accused; and 3) whether the Information alleging a fact contrary to what has been admitted should be quashed. The Court’s Ruling The petition has no merit. Petitioner insists that the act which resulted in physical injuries to private respondent is not covered by RA 9262 because its proximate cause was not their dating relationship. Instead, he claims that the offense committed was only slight physical injuries under the Revised Penal Code which falls under the jurisdiction of the Municipal Trial Court. The Court is not persuaded. Sec. 3(a) of RA 9262 reads: SEC. 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. x x x. The law is broad in scope but specifies two limiting qualifications for any act or series of acts to be considered as a crime of violence against women through physical harm, namely: 1) it is committed against a woman or her child and the woman is the offender’s wife, former wife, or with whom he has or had sexual or dating relationship or with
whom he has a common child; and 2) it results in or is likely to result in physical harm or suffering. In Ang v. Court of Appeals ,5 the Court enumerated the elements of the crime of violence against women through harassment, to wit: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her .6 Notably, while it is required that the offender has or had a sexual or dating relationship with the offended woman, for RA 9262 to be applicable, it is not indispensable that the act of violence be a consequence of such relationship. Nowhere in the law can such limitation be inferred. Hence, applying the rule on statutory construction that when the law does not distinguish, neither should the courts, then, clearly, the punishable acts refer to all acts of violence against women with whom the offender has or had a sexual or dating relationship. As correctly ruled by the RTC, it is immaterial whether the relationship had ceased for as long as there is sufficient evidence showing the past or present existence of such relationship between the offender and the victim when the physical harm was committed. Consequently, the Court cannot depart from the parallelism in Ang and give credence to petitioner's assertion that the act of violence should be due to the sexual or dating relationship. Neither can the Court construe the statute in favor of petitioner using the rule of lenity lenit y7 because there is no ambiguity in RA 9262 that would necessitate any construction. While the degree of physical harm under RA 9262 and Article 26 68 of the Revised Penal Code are the same, there is sufficient justification for prescribing a higher penalty for the former. Clearly, the legislative intent is to purposely impose a more severe sanction on the offenders whose violent act/s physically harm women with whom they have or had a sexual or dating relationship, and/or their children with the end in view of promoting the protection of women and children. Accordingly, the Information Accordingly, Information having having sufficiently sufficiently alleged the necess necessary ary elements elements of the crime, such as: a dating relationship between the petitioner and the private respondent; the act of violence committed by the petitioner; and the resulting physical harm to private respondent, the offense is covered by RA 9262 which falls under the jurisdiction of the RTC in accordance with Sec. 7 of the said law which reads: SEC. 7. Venue – Venue – The The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant. Finally, the Court finds the Orde r 9 of the RTC, giving the prosecutor a period of two (2) days to amend the Information to reflect the cessation of the dating relationship between the petitioner and the offended party, to be in accord with Sec. 4 of Rule 117 of the Rules of Court, to wit: SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. 1âwphi1 Furthermore, Sec. 14 of Rule 110 of the Rules of Court provides that an information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. In the present case, the accused petitioner has not yet been arraigned, hence, the RTC was correct in directing the amendment of the Information and in denying the motion to quash the same. WHEREFORE, the petition is DISMISSED. The Orders dated September 13, 2010 and October 5, 2010 of the Regional Trial Court ( RTC) of Angeles City, Branch 59 in Criminal Case No. 09-5210 are AF.FI RM ED. The Temporary Restraining Order issued by the Court is LIFTED and the RTC is directed to continue with the proceedings in Criminal Case No. 09-5210. SO ORDERED.
G.R. No. 193707
Decemb er 10, 2014
NORMA A. DEL SOCORRO, for and in behalf o f her mi nor chi ld RODERIGO NORJO VAN WILSEM,Petitioner, vs. ERNST JOHAN BRINKMAN VAN WILSEM, Respondent. DECISION PERALTA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside the Orders 1 dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case entitled People of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004. The following facts are culled from the records: Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in Holland on September 25, 1990 .2 On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was sixteen (16) years of age .3 Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate Court of Holland .4 At that time, their son was only eighteen (18) months old .5 Thereafter, petitioner and her son came home to the Philippines.6 According to petitioner, respondentmade a promise to provide monthly support to their son in the amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less) .7 However, since the arrival of petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo .8 Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since then, have been residing thereat .9 Respondent and his new wife established a business known as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City .10 To date, all the parties, including their son, Roderigo, are presently living in Cebu City .11 On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent. However, respondent refused to receive the letter .12
Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to support his minor child with petitioner .13 Respondent submitted his counter-affidavit thereto, to which petitioner also submitted her reply-affidavit .14 Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an information for the crime charged against herein respondent. The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that: That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and still continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial support legally due him, resulting in economic abuse to the victim. CONTRARY TO LAW .15 Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against respondent .16Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner also filed a Motion/Application of Permanent Protection Order to which respondent filed his Opposition .18 Pending the resolution thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the offense charged; and (2) prescription of the crime charged .20 On February 19, 2010, the RTC-Cebu issued the herein assail ed Order ,21 dismissing the instant criminal case against respondent on the ground that the facts charged in the infor mation do not con stit ute an offense with respect to the respondent who i s analien, the dispositive part of which states: WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with respect to the accused, he being an alien, and accordingly, orders this case DISMISSED. The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty ishereby cancelled (sic) and ordered released. SO ORDERED. Cebu City, Philippines, February 19, 2010 .22 Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to support their child under Article 195 23 of the Family Code, thus, failure todo so makes him liable under R.A. No. 9262 which "equally applies to all
persons in the Philippines who are obliged to support their minor children regardless of the obligor’s nationality."24 On September 1, 2010, the lower court issued an Orde r 25 denying petitioner’s Motion for Reconsideration and reiterating its previous ruling. Thus: x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum of the prosecution. Thus, the court hereby reiterates its ruli ng that since the accused is a foreign natio nal he is not s ubject to our national law (The Family Code) in regard to a parent’s duty and obligation to givesupport to his child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262 applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by our domestic law which mandates a parent to give such support, it is the considered opinion of the court that no prima faciecase exists against the accused herein, hence, the case should be dismissed. WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit. SO ORDERED. Cebu City, Philippines, September 1, 2010 .26 Hence, the present Petition for Review on Certiorari raising the following issues: 1. Whether or not a foreign national has an obligation to support his minor child under Philippine law; and 2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified failure to support his minor child .27 At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty Development Corporation ,28 which lays down the instances when a ruling of the trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit: x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only questions of law are raised or involved. This latter situation was one that petitioners found themselves in when they filed the instant Petition to raise only questions of law. In Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the Supreme
Court under Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on questions of law." (Emphasis supplied) There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on the given set of circumstances .29 Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national has an obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so. It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability of a foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in relation to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in the present case, considerations of efficiency and economy in the administration of justice should prevail over the observance of the hierarchy of courts. Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fu lly agree with petitioner’s contentions. To determine whether or not a person is c rimin ally liable und er R.A. No. 926 2, it is imperative that the legal obligation to supp ort exists . Petiti oner invokes Article 195 30 of the Family Code, which provides the parent’s obligation to support his child. Petitio ner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the Family Code ,31 respondent is not excused from complying with his obligation to support his minor child with petitioner. On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that she, as well as her minor son, are entitled to financial support.32 Respondent also added that by reason of the Divorce Decree, he is not obligated to petitioner for any financial support .33 On this point, we agree with r espondent that petitioner cannot rely on Articl e 19534 of the New Civil Code in demanding support from respondent, who is a foreign
citizen, since Article 15 35 of the New Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code on support, the same only appli es to Filipino ci tizens. By analogy, the same principle applies to foreigners such that they are governed by their national law with respect to family rights and duties .36 The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country, not to Philippinelaw, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so.37 In the case of Vivo v. Cloribel ,38 the Court held that – Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15) .39 It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that respondent is not obliged to support petitioner’s son altogether. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law .40 In the present case, respondent hastily concludes that being a national of the Netherlands, he is governed by such laws on the matter of provision of and capacity to support .41 While respondent pl eaded the laws of the Netherlands in advancing his position that he is not obliged to support his son, he never prov ed the same. It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child (either before, during or after the issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that: True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to takejudicial notice of them. Like any other fact, they must be alleged and proved.43 In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctri ne of processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law .44 Thus, since the law of the Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant case, it is presumed to be the same with Philippine
law, which enforces the obligation of parents to support their children and penalizing the non-compliance therewith. Moreover, while in Pilapil v. Ibay-Somera ,45 the Court held that a divorce obtained in a foreign land as well as its legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status of persons, the Divorce Covenant presented by respondent does not completely show that he is notliable to give support to his son after the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated ,46which was not disputed by respondent. We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have no obligation to support their children or that such obligation is not punishable by law, said law would still not find applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation ,47 to wit: In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability. Thus, when the foreign law, judgment or contract is contr ary to a sound and established public polic y of the forum, the said foreign law, judgment or order shall no t be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action. Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent — If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws .48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto. We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former wife, in consonance with the ruling in San Luis v. San Luis , 49 to wit: As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered marriedto the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held: To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. (Emphasis added )50 Based on the for egoing legal precepts, we find th at respondent may be made liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit: SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: xxxx (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, butnot limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: xxxx (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor childrenof access to the woman's child/children .51 Under the aforesaid special law , the deprivation or denial of financial support to the child is considered anact of violence against women and children. In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s claim that the Territoriality Principle in criminal law , in relation to Article 14 of the New Civil Code, applies to the instant case, which provides that: "[p]enal laws and those of public security and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the principle of public international law and to treaty stipulations." On this score, it is indisputable that the alleged continuing acts of respondent in refusing to support his child with petitioner is committed here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As such, our courts have territorial jurisdiction over the offense charged against respondent. It is likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest. Finally, we do not agree with respondent’s a rgument that granting, but not admitting, that there is a legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished on the ground of prescription of crime 52 under Section 24 of R.A. No. 9262, which provides that: SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years. The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense,53which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has clearly not prescribed. Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an examination of the probative value of the evidence presented, and the truth and falsehood of facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has jurisdiction over the case. WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to conduct further proceedings based on the merits of the case. SO ORDERED.
G.R. No. 168852
September 30, 2008
SHARICA MARI L. GO-TAN, Petitioner, vs. SPOUSES PERFECTO C. TAN and JUANITA L. TAN, Respondents.* DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Resolution 1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in Civil Case No. Q-05-54536 and the RTC Resolution 2 dated July 11, 2005 which denied petitioner's Verified Motion for Reconsideration. The factual background of the case: On April 18, 1999, Sharic a Mari L. Go-Tan (petitioner ) and Steven L. Tan (Steven) were married.3 Out of this union, two female children were born, Kyra Danielle 4 and Kristen Denise.5 On January 12, 2005, barely six years into the marriage, petitioner filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO )6 against Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She alleged that Steven, in conspiracy with respondents, were causing verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i )7 of Republic Act (R.A.) No. 9262,8 otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004." On January 25, 2005, the RTC issued an Order/Notice 9 granting petitioner's prayer for a TPO. On February 7, 2005, respondents filed a Motion to Dism iss with Opposition to the Issuance of Permanent Protection Order Ad Cautelam and Comment on the Petition,10 contending that the RTC lacked jurisdiction over their persons since, as parents-in-law of t he petitioner , they were not covered by R.A. No. 9262. On February 28, 2005, petitioner filed a Comment on Opposition 11 to respondents' Motion to Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed at promoting the protection and safety of victims of violence. On March 7, 2005, the RTC issued a Resolution 12 dismissing the case as to respondents on the ground that, being the parents-in-law of the petitioner, they were not included/covered as respondents under R.A. No. 9262 under the well-known rule of law "expressio unius est exclusio alterius. "13
On March 16, 2005, petitioner filed her Verified Motion for Reconsideration 14 contending that the doctrine of necessary implication should be applied in the broader interests of substantial justice and due process. On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration 15arguing that petitioner's liberal construction unduly broadened the provisions of R.A. No. 9262 since the relationship between the offender and the alleged victim was an essential condition for the application of R.A. No. 9262. On July 11, 2005, the RTC issued a Resolution 16 denying petitioner's Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the law. Hence, the present petition on a pure question of law, to wit: WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE "ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004".17 Petiti oner contends that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal Code (RPC) and, accordingly, the provision on "conspiracy" under Article 8 of the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically; that respondents should be included as indispensable or necessary parties for complete resolution of the case. On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3 thereof explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship; that allegations on the conspiracy of respondents require a factual determination which cannot be done by this Court in a petition for review; that respondents cannot be characterized as indispensable or necessary parties, since their presence in the case is not only unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No. 9262. The Court rules i n favor of th e petitioner. Section 3 of R.A. No. 9262 defines ''[v]iol ence against w omen and their ch ildren '' as "any act or a series of acts committed by any person against a woman who is his wife,
former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty." While the said provision provides that the offender be related or connected to the victim by marriage, former marriage, or a sexual or dating relationship, it does not pr eclude the application of the pr inciple of conspi racy under the RPC. Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus: SEC. 47. Suppletory Application. - For purposes of this Act, the Revis ed Penal Code and other applicable laws, shall have suppletory application. (Emphasis supplied) Parenthetically, Article 10 of the RPC provides: ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to su ch laws, unless the latter shou ld specially provid e the contr ary.(Emphasis supplied) Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter. Thus, in People v. Moreno ,18 the Court applied suppletorily the provision on subsidiary penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the "Revised Motor Vehicle Law," noting that the special law did not contain any provision that the defendant could be sentenced with subsidiary imprisonment in case of insolvency. In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of sentences provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations of R.A. No. 6425, otherwise known as the "Dangerous Drugs Act of 1972," considering the lack of similar rules under the special law. In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the words "principal," "accomplices" and "accessories" under R.A. No. 8042, otherwise known as the "Migrant Workers and Overseas Filipinos Act of 1995," because said words were not defined therein, although the special law referred to the same terms in enumerating the persons liable for the crime of illegal recruitment.
In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks Law," noting the absence of an express provision on subsidiary imprisonment in said special law. Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein. With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily. Thus, the princ iple of conspi racy may be applied t o R.A. No. 9262 . For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals .23 It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women and their children may be committ ed by an offender through another, thus: SEC. 5. Ac ts of Vio len ce A gain st Wo men and Thei r Ch il dr en . - The crime of violence against women and their children is committed through any of the following acts: xxx (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, thatalarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied) In addition, the protection order that may be issued for the purpose of preventing further acts of violence against the woman or her child may include individuals other than the offending hu sband , thus: SEC. 8. Protection Orders. – x x x The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or t hrough another , any of the acts mentioned in Section 5 of this Act; 1avvphi1.net (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied) Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus: SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. (Emphasis supplied) It bears mention that the intent of the statute is the law 24 and that this intent must be effectuated by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and safety of victims of violence against women and children. Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusi o alterius " finds no application here. It must be remembered that this maxim is only an "ancillary rule of statutory construction." It is not of universal application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature .25 The Court notes that petitioner unnecessarily argues at great length on the attendance of circumstances evidencing the conspiracy or connivance of Steven and respondents to cause verbal, psychological and economic abuses upon her. However, conspiracy is an evidentiary matter which should be threshed out in a full-blown trial on the merits and cannot be determined in the present petition since this Court is not a trier of facts .26 It is thus premature for petitioner to argue evidentiary matters since this controversy is centered only on the determination of whether respondents may be included in a petition under R.A. No. 9262. The presence or absence of conspiracy can be best passed upon after a trial on the merits.
Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether respondents may be considered indispensable or necessary parties. To do so would be an exercise in superfluity. WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7, 2005 and July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the petition against respondents is concerned. SO ORDERED.
G.R. No. 182835
Apr il 20, 2010
RUSTAN ANG y PASCUA, Petitioner, vs. THE HONORABL E COURT OF APPEALS and IRISH SAGUD, Respondents. DECISION ABAD, J.: This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it. The Indictment The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of violation o f the Anti-Violence Against Women and Their Child ren Act or Repub lic Act (R.A.) 9262 in an information that reads: That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS) using h is m obile ph one , a pornographic picture to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture thereby causing substantial emotional anguish, psychological distress and humiliation to the said Irish Sagud.1 The Facts and the Case The evidence for the prosecution shows that compl ainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him. Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone.
In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a naked woman with spread legs and with Irish’s face superimposed on the figure (Exhibit A) .2 The sender’s cellphone number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit B).3 After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: " Madali lang ikalat yun, my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter ."4 Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: " Malandi ka kasi!" Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person. Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan. For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked out on him. Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his cellphone and the contents of his pockets, and brought him to the police station.
Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who was sending her malicious text messages. Rustan got the sender’s number and, pretending to be I rish, contacted the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number. Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He presented six pictures of a woman whom he identified as Irish (Exhibits 2 to 7) .5 Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent the six pictures. Michelle claims that she received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry. She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed. After trial, the RTC found Irish’s testimony completely credible , given in an honest and spontaneous manner. The RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart. The crying of the victim during her testimony is evidence of the credibility of her charges with the verity borne out of human nature and experience. "6 Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustan’s appeal to the Court of Appeals (CA) ,7 the latter rendered a decision dated January 31, 2008,8affirming the RTC decision. The CA denied Rustan’s motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari. The Issues Presented The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262. The subordinate issues are: 1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A. 9262; 2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262;
3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his constitutional rights; and 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case. The Court’s Rulings Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus: SEC. 3. Definition of Terms. – As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. xxxx Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus: SEC. 5. Acts of Violence Against Women and Their Children. – The crime of violence against women and their children is committed through any of the following acts: xxxx h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: xxxx 5. Engaging in any form of harassment or violence; The above provisions, taken together, indicate that the elements of t he crime of violence against women through harassment are:
1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating relationship" with Irish. Section 3(e) provides that a " dating relationship" includes a situation where the parties are romantically involved over time and on a continuing basis during the course of the relationship . Thus: (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Underscoring supplied.) Here, Rustan claims that, being " romantically involved ," implies that the offender and the offended woman have or had sexual relations . According to him, "romance" implies a sexual act. He cites Webster’s Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He romanced her." But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it used the noun " romance" t o describe a couple ’s relationship, i.e., "a lo ve affair ."9 R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law its elf disti nguis hes a sexual relationshi p from a dating relations hip . Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan also claims that since the relationship between Irish and him was of the "on-andoff" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love.
An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustan’s messages, he would get angry at her. That was all. Indeed, she characterized their three-month romantic relation as continuous .10 Two . Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan alleges that t oday’s women, like Irish, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Irish such that she was already desensitized by them. But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the picture was Irish since her face did not clearly show on them. Michelle, Rustan’s wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after she deleted the pictures. Later, however, she said that she did not have time to delete them . 11 And, if she thought that she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for her to keep it for several years, given that as she said she was too jealous to want to see anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony.1avvphi1 Secondly, the Court cannot measure the trauma that Irish experienced based on Rustan’s low regard for the alleged moral sensibilities of today’s youth . What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Irish’s head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare.
Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest. The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference. Actually, though, the bulk of the evidence against him consisted in Irish’s testimony that she received the obscene picture and malicious text messages that the sender’s cellphone numbers belonged to Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to Lorentess Resort and he did.12 Consequently, the prosecution did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages. Moreover, Rustan admitted having sent the malicious text messages to Irish . 13 His defense was that he himself received those messages from an unidentified person who was harassing Irish and he merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the sender. Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection . 14 Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings .15 In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008. SO ORDERED.
G.R. No. 199522
June 22, 2015
RICKY DINAMLING, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: Before the Court is a Petition for Review on certiorari, under Rule 45 of the Rules of Court, assailing the Decision 1dated August 11, 2011 and Resolution 2 dated November 25, 2011 of the Court of Appeals, in CA-G.R. CR No. 32912, which affirmed with modification the conviction of petitioner for violation of Section 5(i), in relation to Section 6(f) of Republic Act (RA) No. 9262, otherwise known as the Anti-Violence Against Women and their Children Act of 2004 . The facts of the case follow. On the night of March 14, 2007, petitioner Ricky Dinamlin g and a friend came from a drinking session and went to the boarding house of AAA .3 At that time, Dinamli ng and the woman AAA were in an ongoin g five-year relationshi p and they had two common children (then aged four and two years old). Dinamling and his friend arrived as AAA was putting the two children to bed. Suddenly, Dinamling started to evict AAA and the chi ldren, ordering AAA to pack her things in a trash bag and a carton box for ducklings. His reason for the eviction was that she was allegedly using the place as a "whore house" wherein she "brought (her) partners ." AAA initially did not want to leave as she could not carry the children and their things, but she left when Dinamling threw a baby's feeding bottle outside the house, causing it to break. She then went to the house of BBB and requested the latter to fetch her children. When BBB and another friend went for the children, Dinamling already had left with the older child and only the baby was left. The baby was brought by the friends back to AAA. In the past , there were similar incidents that happened between Dinamling and AAA. Dinamling would hit AAA's head, pull her hair and kick her. When AAA went to the police, she was merely told that it was a family problem that could be talked over. Dinamling w as, at th at time, a policeman himself .4 Six days later , or on March 20, 2007, at around 9:00 p.m., another incident occurred. AAA was at the house of CCC when Dinamling arrived. He shouted and counted down for AAA to come out. When she came out, Dinamlin g pun ched her at the left ear, which subsequently bled. When AAA asked him why he kept on following her when she already had left him, Dinamling shouted her family name and told her she was "goodfor-nothing." AAA left for the barangay captain's house, but Dinamling caught up with her and kicked her until she fell to the ground. On the road, Dinamling pulled down AAA's pants and panty and shouted at her while people looked on. Dinamling then threw the pants and panty back at AAA and shouted her family name. Dinamling, then
intoxicated, left on a motorcycle .5 AAA stayed at her friend's home until she felt some back pain in the next morning. She found out sh e was bleeding and about to miscarry so she was immediately brought to the hospital. There, she was told that she was 19 weeks pregnant and had an incomplete abortion. She was hospitalized for four days. Dinamling visited her but showed no remorse over his acts .6 As a result of the above incidents, petitioner Ricky Dinamling w as charged in tw o (2) criminal Informations in the Regional Trial Court (RTC) for violation of Section 5(i), in relation to Secti on 6(f )7 of RA No. 9262. The two Informations against him read: Criminal Case No. 1701: That on or about the evening of March 14, 2007, at XXX, Ifugao, the above-named accused did then and there willfully, unlawfully and feloniously inflict psychological violence upon AAA, a woman with whom he has two common children, resulting to mental and emotional anguish and public ridicule or humiliation by repeated verbal and emotional abuse consistin g of several bad and insu lting u tterances directed against the victim and a feeding bottle being thrown against the latter in anger. CONTRARY TO LAW, with the offense being attended by the special qualifying aggravating circumstance of the victim being pregnant at the time. Criminal Case No. 1702: That on or about the evening of March 20, 2007 at XXX, Ifugao, the above-named accused did then and there willfully, unlawfully and feloniously inflict psychological violence upon AAA, a woman with whom he has two common children, resulting to mental and emotional anguish and public ridicule or humiliation by boxing the victim on th e head, kickin g her at the back and removing her pant(sic) and panty (sic). CONTRARY TO LAW, with the offense being attended by the special qualifying aggravating circumstance of the victim being pregnant at the time. Upon arraignment, Dinamling pleaded Not Guilty to both charges. Thereafter, the cases were tried jointly.8 For the prosecution, AAA, her mother DDD and Dr. Mae Codamon Diaz testified. For the accused, only petitioner testified for and in his own defense. His defense was denial and alibi, claiming that he was on duty at the town's police station at the time that the offenses were committed .9 After trial, the RTC rendered its decision on August 4, 2009 finding Dinamling guil ty of both charges . For Criminal Case No. 1701, the court sentenced him to suffer imprisonment of from ten (10) years and one (1) day to twelve (12) years of prision mayor .10 For Criminal Case No. 1702, the court ordered him to suffer imprisonment of
from ten (10) years and one (1) day to twelve (12) years of prision mayor in its maximum period. On appeal to the Court of Ap peals , the decision in Criminal Case No. 1701 was affirmed and th e one in Criminal Case No. 1702 was affirmed with the modification on the penalty, by applying the Indeterminate Sentence Law, such that Dinamling was sentenced to imprisonment of nine (9) years, four (4) months and one (1) day of prision mayor, as minimum, to twelve (12) years of prision mayor, as maximum. Hence, the present petition. The petition assails the findings of the Court of Appeals for allegedly disregarding his defenses of denial and alibi as well as in discounting the supposedly exculpatory nature of a part of a prosecution witness' testimony. Allegedly, the witness, Dr. Diaz, testified that she was unsure if the abortion was a result of the mauling that AAA suffered or could have been caused by an infection or other factors .11 This Court resolves to deny the petition for lack of merit, but will modify some of the penalties imposed by the appellate court. The petition raises issues that call for an examination of the factual findings of the trial court and the appellate court. As a general rule, under Rule 45, no questions of fact but only questions of law may be raised in a petition for review brought before this Court.12 Time and again, the Court has consistently declared that questions of facts are beyond the pale of a petition for review .13 Factual findings of the trial court, particularly when affirmed by the appellate courts, are generally binding on this Court . 14 But there are recognized exceptions to the rule that questions of fact may not be entertained by this Court in a petition for review, to wit: (1) When the factual findings of the Court of Appeals and the trial court are contradictory; (2) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (3) When the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) When there is grave abuse of discretion in the appreciation of facts; (5) When the appellate court, in making its findings, went beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee; (6) When the judgment of the Court of Appeals is premised on a misapprehension of facts;
(7) When the Court of Appeals failed to notice certain relevant facts which, if properly considered, would justify a different conclusion; (8) When the findings of fact are themselves conflicting; (9) When the findings of fact are conclusions without citation of the specific evidence on which they are based; and (10) When the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record,15 None of the above-mentioned exceptions, however, are cited by the petitioner as a ground to grant his petition. But even assuming arguendo, and in the interest of substantial justice, that any of the exceptions above were indeed invoked, as the petition alleges that the appellate court failed to give weight to petitioner's defenses of denial and alibi as well as to his stance that the testimony of Dr. Diaz exculpates him from the crime, this Court, upon a close examination of the case records, still found no error in the appellate court's finding of guilt in petitioner. On its face, there is no reason to doubt th e veracity and trut hfuln ess of the victim AAA's evidence. In particular, AAA's testimony narrating the specific incidents which gave rise to the charges was clear, categorical and straightforward and, therefore, worthy of credence. Herein below are excerpts of her testimony: Q. Specifically inviting your attention to that incident in the evening of March 14, 2007, could you please tell the court what transpired? A. In the evening of March 14, 2007, somewhere around seven or eight o'clock in the evening, I was letting my kids sleep (w)hen (Dinamling) came with a friend. They had a drinking spree and x x x he started to evict us from that boarding house because according to him, I (was) using that boarding house as a whore house (by) bringing in partners, et cetera to that boarding house. That (was) why he was letting us out of it. And he even told me that if I (had) no travelling bag, I (could) use the basura (garbage) bag outside and I (could) use the carton where he placed the ducklings to pack our things and leave the place. That night, I (did) not know how to carry them out and I was waiting for him to stop talking and leave but he never left us up to the time he threw the feeding bottle of my baby outside that caused it to break and that was also the time I decided to go to the house of BBB because it is the place where my landlady (was) staying. xxxx Q. You mentioned of a feeding bottle. A. He threw it outside, Sir.
Q. How did you feel as regards these actuations of the accused that evening? A. That is worst. He was inflicting pain (on) me but that time it was directed (at an) innocent individual and that is very painful. Q. Personally, did you feel distressed or stressed or fearful at the time the accused was acting that way? A. When he started acting that way, I fear(ed) he would again inflict those pain (on) us. Q. So when you went to the house of BBB, what happened next? A. x x x He (BBB) went to fetch the kids and came home with one of the kids but to my dismay, even the milk of my baby was not there any more; that night because it was around 11:00 o'clock, we had to use the feeding bottle of BBB's son together with the milk because when they went to fetch the kids, the milk was gone. Q. Was the incident on March 14, 2007 the first time or it happened (sic) previously? A. It happened previously. Those were the time(s) that (I was) prompted to go back home and to my relatives for protection but he (came, followed) us where we (went). Q. In those previous incidents before March 14, 2007, what did he do, if any? A. There are times he did that in public. He usually starts hitting my head, pulls my hair kicks me and there was a time I went to the police station but they said that (it) is some kind of family problem that we could talk xxx over and so it was left that way. I thought leaving him would be the best thing to do but he kept on following us .16 xxxx Q. I am inviting your attention to that incident of March 20, 2007. Will you please tell the court what happened that late afternoon or early evening? A. I was at the house of CCC waiting for a friend because of what happened on March 14, 2007 when we left the boarding house. xxxx Q. What transpired thereat, when you were at that place? A. After sometime, around 9 o'clock, (Dinamling) came and shouted words that (on) final count, (I) should be out of that place. Q. And what else happened?
A. After shouting, he boxed me at the left ear. Q. What transpired next? A. (T)hen I felt there was blood in my ear. I followed him outside and I inquired (as to) why he (kept on) following us when we (already) left the boarding house and then he started shouting at me, shouting my family name, x x x x that I (was) good for nothing and that I (could) sue him (in) court and he (would) pay me. So I said "I thought when we already left, you were at peace with yourself already." When I was going down, going to the barangay captain's house, he followed me. When I tried to go back, he kicked me. He pulled my pants down and pulled even my panty and he said x x x he (did) that to me because I was worthless. Q. (At) what particular spot did the accused pull down your pants and your panty? A. Front of CCC. Q. What was that spot, road or backyard? A. Road. Q. Could you describe the place? Were there houses nearby, that road, that spot where he pulled down your pants and panty? A. There is a small store and people were looking at us. There are houses above and then one of them told me he saw but he is afraid to come out. Q. Was it already dark (at) that time? A. Dark but then there was a street light near the residence. Q. Was it still early evening? A. Yes, sir. Q. About what time? A. Around 9 o'clock. Q. After pulling down your pants and your panty along that road, what else happened? A. He threw my pants and panty back tome and he left shouting at me, my family name. It is very hurting because my family (had) nothing to do with this. xxxx
Q. And what happened the following day? A. I stayed at my friend's house then at 5:00 o'clock early morning of March 21, there was pain at my back. That night when he kicked me, there was pain at my back. I said I (would) just go tomorrow for medication but I did not reach the day because I was bleeding. When I went to the bathroom, there (was) blood so I said I think I am going to abort. There (was) blood already so I decided to go to bath before I (went) to the hospital but when I went to take a bath, I already had profuse bleeding so they (had) to carry me with the use of a blanket to the hospital .17 AAA also st ated that the baby t hat she cl aims was abor ted w ould have been her third child with Dinamling. She also testified about always being afraid of Dinamling, even fearing the sound of his motorcycle as that signalled that she or her children would be abused. She previously filed with the police a complaint for physical injuries but nothing came of it. Later, she learned from Dinamling that he had been discharged as a policeman.18 The trial court specifically ascribed credibility on the said testimony of AAA which the Court of Appeals has affirmed. Under such cir cumst ances, this Court has little option but to accord said findings wi th great respect, if not fi nality . The findings off act of the trial court, as regards the credibility of a witness, when affirmed by the Court of Appeals and supported by the evidence on record are accorded finality .19 In addition to AAA's testimony, her mother DDD also testified that her daughter was "like a corpse" because of Dinamling's maltreatment. DDD narrated the history of maltreatment of her daughter, including the times that she saw her with "bluish spots" and when AAA had a miscarriage from all the boxing and kicking that she had received from Dinamling.20 She knew that Dinamling was a married man when he had his relationship with AAA 21 and she knew for a fact that Dinamling did not live with AAA and the children because he always went home to his own wife .22 The above testim onies suf fice to establish t he elements of the cr ime as defined in Section 5(i) of RA No. 9262 and as alleged in the two Informations filed against petitioner. The provision of the law states: Section 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: xxxx (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman's child/children.
From the aforequoted Section 5(i), in relation to other sections of RA No. 9262 , the elements of the cr ime are derived as follows: (1) The offended party is a woman and/or her child or children ;23 (2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman's child or children, they may be legitimate or illegitimate, or living within or without the family abode;24 (3) The offender causes on the woman and/or child mental or emotional anguish; and (4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar such acts or omissions .25 As fo r the fir st case, Criminal Case No. 1701, filed against petitioner Dinamling, the elements h ave been proven and d uly establis hed . It is undisputed that AA A, as the victim, is a woman who was then in a five-year ongoin g relationship wi th petition er Dinamling. At that time, AAA and Dinamling had two common c hildren. AAA was often in f ear of p etitioner due to t he latter's ph ysical and verbal abuse . In the evening of March 14, 2007, an incident occurred in which she and her children were actually evicted by Dinamling from a boarding house. Dinamling, in the presence of his own friend and the children, accused AAA of using the boarding house as a "whorehouse" and alleged that AAA brought sexual partners in that place. Dinamling further humiliated AAA by telling her to pack her clothes in a trash bag and in a carton box used to pack ducklings. He then threw a baby bottle outside and broke it. This forced AAA to hastily leave even without her children. Dinamling also left and took with him the elder child and left the baby behind. AAA had to ask for her friends to fetch the children but the latter found only the baby. According to AAA and her mother DDD, that incident was not an isolated one, as similar incidents had happened previously. As fo r the second case, Criminal Case No. 1702, the crim e's elements were likewise proven. In addition to the first two elements of the victim being a woman and in a relationship with the offender, the prosecution was able to prove another incident of mental or emotional anguish through publi c ridicul e or humiliation when it showed Dinamling acting in the following manner: a) by calling and counting down on AAA for the latter to come out of the house where she was staying; b) by punching AAA at the left ear upon seeing her; c) by shouting AAA's family name and calling her "good-for-nothing;" d) by saying that AAA could sue him but he would just pay her;
e) by kicking AAA to the ground and then pulling off her pants and underwear (panty) and calling her worthless; f) by throwing the pants and panty back at AAA while shouting AAA's family name as he left. All such acts were committed while in full view and hearing of the public, highlighting the public ridicule and humiliation done on AAA and causing her mental and emotional pain. AAA's suffering is so much that even the sound of petitioner's motorcycle would put fear in her. All the above, as established during trial, lead to no other conclusion than the commission of the crime as prescribed in the law. It matters not that no other eyewitness corroborated AAA's testimony of the actual incidents. The testimony of the complainant as a lone witness to the actual perpetration of the act, as long as it is credible, suffices to establish the guilt of the accused because evidence is weighed and not counted .26 If, in criminal cases of rape 27 or homicide,28 the positive, categorical and credible testimony of a lone witness is deemed enough to support a conviction, then, in the case at bar, involving a case of violation of Section 5(i) of RA No. 9262, this Court shall treat in the same manner the testimony of a single but credible witness for the prosecution. Especially if the testimony bears the earmarks of truth and sincerity and was delivered spontaneously, naturally and in a straightforward manner, corroborative testimony is not needed to support a conviction .29 It bears emphasis that Section 5(i) penalizes some forms of psychological violence that are inflicted on victims who are women and children. Other forms of psychological violence, as well as physical, sexual and economic violence, are addressed and penalized in other sub-parts of Section 5. The law defines psychological violence as follows: Section 3(a) xxxx C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.
Psychological violence is an element of violation of Section 5(i) just like the mental or emotional anguish caused on the victim. Psychological violence is the means employed by the perpetrator, while mental or emotional anguish is the effect caused to or the damage sustained by the offended party. To establish psychological violence as an element of the crime, it is necessary to show proof of commission of any of the acts enumerated in Section 5(i) or similar such acts. And to establish mental or emotional anguish, it is necessary to present the testimony of the victim as such experiences are personal to this party .30 All of this was complied with in the case at bar. In the face of the strong and credible testimony of AAA, petitioner Dinamling relies on a defense of denial and alibi. On the nights of March 14 and 20, 2007, he claimed that he was on duty at XXX Police Station.31 He denied seeing AAA on those dates .32 However, on cross examination, he admitted that it takes only two to three minutes to go from the police station to AAA's boarding house .33 Denial and alibi, as defenses of an accused in a criminal case, have been consistently held as inherently weak 34and which, unless supported by clear and convincing evidence, cannot prevail over the positive declarations of the victim .35 In general, a plea of denial and alibi is not given much weight relative to the affirmative testimony of the offended party.36 The only exception to this rule is where there is no effective identification, or where the identification of the accused has been fatally tainted by irregularity and attendant inconsistencies .37 In the case at bar, nothing in Dinamling's defense overcomes the clear, straightforward, unequivocal and positive declarations of AAA. For one, the positive identification of Dinamling as the perpetrator is not an issue. It is not disputed that he and AAA knew each other very well as, in fact, they were at that time carrying on a five-year relationship which had borne two common children. Then, as for alibi, such a defense would prosper only if the accused was able to prove that not only was heat some other place when the crime was committed, but also that he could not have been physically present at the place of the crime, or in its immediate vicinity, during its commission .38 Using such standards, Dinamling's alibi holds no water. Not only was his alleged location at the time of commission, that is, the XXX Police Station where he was on duty, in the same municipality as the crimes' place of commission, Dinamling himself also admited that this police station is just "two to three minutes" away from AAA's boarding house. Where the accused admits that he was in the same municipality as the place where the offense occurred, it cannot be said that it was physically impossible for him to have committed the crime, and his defense of alibi cannot prosper .39 Therefore, the trial and appellate courts correctly found petitioner Dinamling guilty beyond reasonable doubt and such conviction must be upheld. To reiterate, the denial of the accused is a negative assertion that is weaker than the affirmative testimony of the victim.40 It almost has no probative value and may be further discarded in the absence of any evidence of ill motives on the part of the witness to impute so grave a wrong against the accused .41 As for alibi, it is not given weight if the accused failed to
demonstrate that he was so far away and could not have been physically present at the scene of the crime and its immediate vicinity when the crime was committed . 42 But petitioner Dinamling also harps on the allegedly exculpatory testimony of Dr. Diaz, the substance of which allegedly frees him from responsibility for the incomplete abortion of AAA's unborn child. By way of background, a witness, who is an officer of the Ifugao Provincial Hospital, brought a copy of a medical certificate issued by a Dr. Johan Baguilat stating that: a) AAA was hospitalized at the said hospital from March 21 to March 24, 2007; b) AAA had an incomplete abortion secondary to the mauling, and; c) AAA had anemia, contusion, hematoma and abrasion of the left elbow . 43 The witness testified that she herself typed the medical certificate and had it signed by Dr. Baguilat.44 Dr. Baguilat, however, was unable to testify, due to the alleged distance of the court from his current place of work .45 Instead of Dr. Baguilat, it was Dr. Mae Codamon-Diaz, an obstetrician-gynecologist of the Ifugao Provincial Hospital, who testified that the medical certificate indicated that AAA was pregnant, but that her incomplete abortion might or might not have been caused by her "mauling." 46 Dr. Diaz added that the anemia was caused by profuse bleeding, while the contusion and hematoma were caused by a fall, trauma, blow or impact to the patient's body . 47 When cross-examined, Dr. Diaz stated that other possible causes of abortion include infection of the reproductive organ or urinary tract infection and intake of strong medicines, while another cause of anemia is malnutrition .48 Petitioner Dinamling's position is that such testimony of Dr. Diaz, which expresses an uncertainty as to whether the mauling of AAA caused her abortion, exculpates him from the crime. The Court disagrees. Petitioner barks up the wrong tree because the fact of AAA's physical injuries from the mauling, including her abortion, do not constitute an element of the crime with which he is charged. Such injuries are likewise not alleged in the two informations against him. Therefore, the testimony of Dr. Diaz or any physician as to the fact or existence of such physical injuries is not indispensable to petitioner's conviction or acquittal. Simply put, AAA's physical condition is not an element of the crime that petitioner was charged with, hence, proof of the same is, strictly speaking, unnecessary. In fact, neither the physical injuries suffered by the victim nor the actual physical violence done by the perpetrator are necessary to prove the essential elements of the crime as defined in Section 5(i) of RA 9262. The only exception is, as in the case at bar, when the physical violence done by the accused is alleged to have caused the mental and emotional suffering; in which case, such acts of physical violence must be proven. In this instance, the physical violence was a means of causing mental or emotional
suffering. As such, whether or not it led to actual bodily injury, the physical violence translates to psychological violence since its main effect was on the victim's mental or emotional well-being. In the case at bar, petitioner Dinamling's acts of publicly punching, kicking and stripping AAA of her pants and underwear, although obvious acts of physical violence, are also instances of psychological violence since it was alleged and proven that they resulted in AAA's public ridicule and humiliation and mental or emotional distress. The clear, unrebutted testimony of the victim AAA, as to the physical violence done on her as well as to the mental and emotional suffering she experienced as a result thereof, suffices to prove such facts. The victim's resulting actual bodily injuries are immaterial unless such injuries are also alleged to have led to her mental or emotional anguish. There was no such allegation in the information in the case at bar. Thus, proof of physical injuries is not needed for conviction. Likewise, proof of the absence thereof or lack of proof of such injuries would not lead to an acquittal. Physical violence or physical injuries, in isolation, are not elements of this particular crime. As earlier discussed, the focus of this particular criminal act is the causation of nonphysical suffering, that is, mental or emotional distress, or even anxiety and social shame or dishonor on the offended party, and not of direct bodily harm or property damage which are covered by the other subsections of the law's provision. The use of physical violence, whether or not it causes physical or property harm to the victim, falls under Section 5(i) only if it is alleged and proven to have caused mental or emotional anguish. Likewise, the physical injuries suffered are similarly covered only if they lead to such psychological harm. Otherwise, physical violence or injuries, with no allegation of mental or emotional harm, are punishable under the other provisions of the law. As to the alleged miscarriage or incomplete abortion, the allegedly exculpatory testimony of Dr. Diaz, or even the complete disregard of any evidence surrounding such fact does not lead to petitioner Dinamling's acquittal. Like the physical injuries that was discussed above, the fact of AAA's miscarriage or incomplete abortion is not essential to proving the elements of the crime, unless it is alleged to have caused mental or emotional suffering. It is not among the crime's elements. In fact, it is not abortion but the mere fact of pregnancy of the victim at the time of commission which is an aggravating circumstance, not an element, of the offense. Section 6 of RA 9262 reads: SECTION 6. Penalties.- The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following rules: xxxx (f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor. If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in the section.
In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than three hundred thousand pesos (P300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court .49 For this crime, pregnancy or the presence of the woman's child are aggravating circumstances which increase the imposable penalty, thus, they must be alleged and proven with competent evidence for the penalty to be properly imposed . 50 It is true that the fact of AAA's incomplete abortion or miscarriage does not establish any of the crime's elements, as indeed the information itself did not allege the same. However, from the fact of miscarriage one may logically derive the fact of AAA's pregnancy, which is an aggravating circumstance for the crime and which is alleged as such in the information. The pregnancy is proven by AAA's unrebutted testimony as well as by the medical certificate that she presented in the course of such testimony to show that she was indeed hospitalized and suffered an "incomplete abortion secondary to the mauling." Although petitioner Dinamling, up to this stage of the case, denies having caused the incomplete abortion or miscarriage, he does not deny the fact of pregnancy itself. He did not present contradictory evidence during trial to controvert the prosecution's assertions and proof of pregnancy. The pregnancy was never put in issue during trial and on appeal. Neither is the same in question in this petition. Therefore, it may be safely concluded that the fact of AAA's pregnancy has been established and it may be taken account of and considered as a circumstance that aggravates Dinamling's criminal liability. Therefore, given such finding, this Court will now accordingly modify the penalties imposed by the trial court and appellate court .51 As for Criminal Case No. 1701, no mitigating and only one (1) aggravating circumstance attends the crime.1âwphi1 Although it was stated during trial that the offense was committed in the presence of AAA's children, such fact was not alleged in the information and therefore will not be taken into consideration .52 Nighttime, though alleged, is not considered aggravating because it neither facilitated the commission of the offense nor was it shown to have been purposely sought by the offender . 53 The fact of AAA's pregnancy during the crime's commission, however, has been alleged and established. This single circumstance aggravates the accused's liability and automatically raises his penalty to the maximum period of the penalty prescribed, per Section 6 of RA 9262 and also Article 64(3) of the Revised Penal Code. Hence, petitioner Dinamling should be sentenced to a maximum penalty that is derived from prision mayor in its maximum period, which is imprisonment of ten (10) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law ,54 the minimum penalty should come from the penalty one degree lower than prision mayor which is prision correccional, whose range is from six (6) months and one (1) day to six (6) years.55 Therefore, this Court modifies the trial court's Order dated September 17,
