Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 198732 June 10, 2013

CHRISTIAN CABALLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 assailing the January 28, 2011 Decision2 and September
26, 2011 Resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 27399-MIN which affirmed with
modification the April 1, 2003 Decision of the Regional Trial Court of Surigao City, Branch 30 (RTC), finding
petitioner Christian Caballo (Caballo) guilty beyond reasonable doubt of violating Section 10(a), Article VI of
Republic Act No. 76104(RA 7610), otherwise known as the "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act," in relation to Section 2 of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases (Rules on Child Abuse Cases).

The Facts

On March 16, 1999, an Information5 was filed charging Caballo of violation of Section 10(a), Article VI of RA
7610 which was later amended on May 28, 1999, to include statements pertaining to the delivery of private
complainant AAA’s6 baby. The Amended Information7 reads:

That undersigned Second Assistant City Prosecutor hereby accuses Christian Caballo of the crime of Violation
of Section 10 (a) of Republic Act No. 7610, committed as follows:

That in or about the last week of March 1998, and on different dates subsequent thereto, until June 1998, in the
City of Surigao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a
23 year old man, in utter disregard of the prohibition of the provisions of Republic Act No. 7610 and taking
advantage of the innocence and lack of worldly experience of AAA who was only 17 years old at that time,
having been born on November 3, 1980, did then and there willfully, unlawfully and feloniously commit
sexual abuse upon said AAA, by persuading and inducing the latter to have sexual intercourse with him, which
ultimately resulted to her untimely pregnancy and delivery of a baby on March 8, 1999, a condition prejudicial
to her development, to the damage and prejudice of AAA in such amount as may be allowed by law.

CONTRARY TO LAW.

Surigao City, Philippines, May 28, 1999.

Upon arraignment, Caballo pleaded not guilty to the aforesaid charges.8

Based on the records, the undisputed facts are as follows:

AAA, then 17 years old, met Caballo, then 23 years old, in her uncle’s place in Surigao City. Her uncle was a
choreographer and Caballo was one of his dancers. During that time, AAA was a sophomore college student at
the University of San Carlos and resided at a boarding house in Cebu City. On January 17, 1998, Caballo went
to Cebu City to attend the Sinulog Festival and there, visited AAA. After spending time together, they
eventually became sweethearts.9 Sometime during the third week of March 1998, AAA went home to Surigao
City and stayed with her uncle. In the last week of March of the same year, Caballo persuaded AAA to have
sexual intercourse with him. This was followed by several more of the same in April 1998, in the first and
second weeks of May 1998, on August 31, 1998 and in November 1998, all of which happened in Surigao
City, except the one in August which occurred in Cebu.10 In June 1998, AAA becamepregnant and later gave
birth on March 8, 1999.11

During the trial, the prosecution asserted that Caballo was only able to induce AAA to lose her virginity due to
promises of marriage and his assurance that he would not get her pregnant due to the use of the "withdrawal
method." Moreover, it claimed that Caballo was shocked upon hearing the news of AAA’s pregnancy and
consequently, advised her to have an abortion. She heeded Caballo’s advice; however, her efforts were
unsuccessful. Further, the prosecution averred that when AAA’s mother confronted Caballo to find out what
his plans were for AAA, he assured her that he would marry her daughter.12

Opposed to the foregoing, Caballo claimed that during their first sexual intercourse, AAA was no longer a
virgin as he found it easy to penetrate her and that there was no bleeding. He also maintained that AAA had (3)
three boyfriends prior to him. Further, he posited that he and AAA were sweethearts who lived-in together, for
one (1) week in a certain Litang Hotel and another week in the residence of AAA’s uncle. Eventually, they
broke up due to the intervention of AAA’s parents. At a certain time, AAA’s mother even told Caballo that he
was not deserving of AAA because he was poor. Lastly, he alleged that he repeatedly proposed marriage to
AAA but was always rejected because she was still studying.13

The RTC’s Ruling

In a Decision dated April 1, 2003, the RTC found Caballo guilty beyond reasonable doubt of violation of
Section 10(a), Article VI of RA 7610, in relation to Section 2 of the Rules on Child Abuse Cases. Accordingly,
it sentenced Caballo to suffer imprisonment for an indeterminate period ranging from prision correccional, in
its maximum period of four (4) years, two (2) months and one (1) day, as minimum, to prision mayor in its
minimum period of six (6) years, eight (8) months and one (1) day, as maximum. It also ordered Caballo to
pay AAA moral damages in the amount of ₱50,000.00.14

Aggrieved, Caballo elevated the case to the CA.

The CA’s Ruling

In a Decision dated January 28, 2011,15 the CA dismissed the appeal and affirmed with modification the
RTC’s ruling, finding Caballo guilty of violating Section 5(b), Article III of RA 7610.

It ruled that while the Amended Information denominated the crime charged as violation of Section 10(a),
Article VI of RA 7610, the statements in its body actually support a charge of violation of Section 5(b), Article
III of RA 7610.16

On the merits of the case, it found that the evidence adduced by the prosecution clearly showed that Caballo
persuaded, induced and enticed AAA, then a minor, to have carnal knowledge with him. Towards this end,
Caballo repeatedly assured AAA of his love and even went on to promise marriage to her. He also assured
AAA that she would not get pregnant because he would be using the "withdrawal method." Thus, it was upon
these repeated coaxing and assuring words that AAA succumbed to Caballo’s evil desires which deflowered
and got her pregnant. On this score, it observed that consent is immaterial in child abuse cases involving sexual
intercourse and lascivious conduct and therefore, the sweetheart defense remains unacceptable.17 It also found
basis to sustain the award of moral damages.18

Caballo filed a motion for reconsideration which was, however, denied on September 26, 2011.19

Hence, the instant petition.

The Issue

The core of the present controversy revolves around the interpretation of the phrase "due to the coercion or
influence of any adult" which would thereby classify the victim as a "child exploited in prostitution and other
sexual abuse" as found in Section 5, Article III of RA 7610. Consequently, the interpretation which the Court
accords herein would determine whether or not the CA erred in finding Caballo guilty of violating paragraph
(b) of the same proviso.

In his petition, Caballo essentially argues that his promise to marry or his use of the "withdrawal method"
should not be considered as "persuasion" or "inducement" sufficient to convict him for the aforementioned
offense, asserting that these should be coupled with some form of coercion or intimidation to constitute child
abuse. He further alleges that he and AAA were sweethearts which thus, made the sexual intercourse
consensual.

In its Comment,20 respondent advances the argument that there was "sexual abuse" within the purview of RA
7610 as well as the Rules on Child Abuse Cases since it was only upon Caballo’s repeated assurances and
persuasion that AAA gave in to his worldly desires. Likewise, it points out that the sweetheart theory, as relied
on by Caballo, deserves scant consideration in view of the Court’s ruling in Malto v. People (Malto).21

The Court’s Ruling

The petition has no merit.

Section 5(b), Article III of RA 7610 pertinently reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge
in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual
abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following: x x x x

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution
or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3 for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be; Provided, That the
penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in
its medium period x x x x (Emphasis and underscoring supplied)

As determined in the case of Olivarez v. CA (Olivarez),22 the elements of the foregoing offense are the
following:

(a) The accused commits the act of sexual intercourse or lascivious conduct;
 (b) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse;
and

(c) The child, whether male or female, is below 18 years of age.

In this case, the existence of the first and third elements remains undisputed. Records disclose that Caballo had
succeeded in repeatedly having sexual intercourse with AAA who, during all those instances, was still a minor.
Thus, the only bone of contention lies in the presence of the second element. On this note, the defense submits
that AAA could not be considered as a "child exploited in prostitution and other sexual abuse" since the
incidents to do not point to any form of "coercion" or "influence" on Caballo’s part.

The argument is untenable.

To put things in proper perspective, it must be pointed out that RA 7610 was meant to advance the state policy
of affording "special protection to children from all forms of abuse, neglect, cruelty, exploitation and
discrimination and other conditions prejudicial to their development" and in such regard, "provide sanctions
for their commission."23 It also furthers the "best interests of children" and as such, its provisions are guided by
this standard.24

Driven by the foregoing considerations, Congress crafted Article III of the same law in order to penalize child
prostitution and other forms of sexual abuse. Section 5 thereof provides a definition of who is considered a
"child exploited in prostitution and other sexual abuse." As illumined in Olivarez,25 citing People v.
Larin26 and Amployo v. People,27 the final version of the aforesaid provision was a product of various
deliberations to expand its original coverage to cases where the minor may have been coerced or intimidated
into sexual intercourse or lascivious conduct, not necessarily for money or profit, viz:

The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to other
sexual abuse, is likewise present. As succinctly explained in People v. Larin:

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in
sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the
coercion or influence of any adult, syndicate or group...

It must be noted that the law covers not only a situation in which a child is abused for profit, but also one in
which a child, through coercion or intimidation, engages in lascivious conduct.

In this manner, the law is able to act as an effective deterrent to quell all forms of abuse, neglect, cruelty,
exploitation and discrimination against children, prejudicial as they are to their development.

In this relation, case law further clarifies that sexual intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues
the free exercise of the offended party’s free will.28 Corollary thereto, Section 2(g) of the Rules on Child
Abuse Cases conveys that sexual abuse involves the element of influence which manifests in a variety of
forms. It is defined as:

The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another
person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with
children.
To note, the term "influence" means the "improper use of power or trust in any way that deprives a person of
free will and substitutes another’s objective."29 Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it."30

In view of the foregoing, the Court observes that Caballo’s actuations may be classified as "coercion" and
"influence" within the purview of Section 5, Article III of RA 7610:

First, the most crucial element is AAA’s minority. It is undisputed that AAA was only 17 years old at the time
of the commission of the crime and is hence, considered a child under the law.31 In this respect, AAA was not
capable of fully understanding or knowing the import of her actions and in consequence, remained vulnerable
to the cajolery and deception of adults, as in this case.

Based on this premise, jurisprudence settles that consent is immaterial in cases involving a violation of Section
5, Article III of RA 7610; as such, the argument that AAA and Caballo were sweethearts remains irrelevant.

The language of the law is clear: it seeks to punish "those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse."

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610.
The mere act of having sexual intercourse or committing lascivious conduct with a child who is exploited in
prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is
proscribed.

In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or
sexual intercourse.

Second, coupled with AAA’s minority is Caballo’s seniority. Records indicate that Caballo was 23 years old at
the time of the commission of the offense and therefore, 6 years older than AAA, more or less. The age
disparity between an adult and a minor placed Caballo in a stronger position over AAA so as to enable him to
force his will upon the latter.

Third, Caballo's actions effectively constitute overt acts of coercion and influence. Records reveal that Caballo
repeatedly assured AAA of his love for her, and even, promised to marry her. In addition, he also guaranteed
that she would not get pregnant since he would be using the "withdrawal method" for safety. Irrefragably,
these were meant to influence AAA to set aside her reservations and eventually give into having sex with him,
with which he succeeded.

Fourth, at least, with respect to the parties' first sexual encounter, it is observed that the brash and unexpected
manner in which Caballo pursued AAA to her room and pressed on her to have sex with him, effectively
placed her in, to a certain extent, a position of duress .. An important factor is that AAA refused Caballo's
incipient advances and in fact, asked him to leave. However, AAA eventually yielded. Thus, it stands to reason
that she was put in a situation deprived of the benefit of clear thought and choice. In any case, the Court
observes that any other choice would, nonetheless, remain tarnished due to AAA's minority as above-
discussed.

Hence, considering that Caballo's acts constitute "coercion" and "influence" within the context of the law, and
that AAA indulged in sexual intercourse and/or lascivious conduct with Caballo due to the same, she is
deemed as a "child exploited in prostitution and other sexual abuse"; as such, the second element of the subject
offense exists.
In fine, finding all elements to be present, the Court hereby sustains Caballo's conviction for violation of
Section 5(b), Article III of RA 7610.

WHEREFORE, the petition is DENIED. The January 28, 2011 Decision and September 26, 2011 Resolution
of the Court of Appeals in CAG.R. CR No. 27399-MIN are hereby AFFIRMED.

SO ORDERED .

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

FIRST DIVISION

ISIDRO OLIVAREZ, G.R. No. 163866

Petitioner,
Present:
Davide, Jr., C.J. (Chairman),
- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES,
Respondents. Promulgated:
July 29, 2005
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

For review is the Court of Appeals decision in CA-G.R. CR No. 22860[1] which affirmed the
judgment[2] rendered by the Regional Trial Court of San Pedro, Laguna, Branch 93,[3] in Crim. Case No. 0505-
SPL finding petitioner Isidro Olivarez guilty of violating Section 5, Republic Act No. 7610;[4] and its resolution
denying reconsideration thereof.[5]

The case originated from a complaint filed by the offended party with the Municipal Trial Court of San
Pedro, Laguna which was the basis upon which an information for violation of R.A. 7610 was filed against Isidro
Olivarez, to wit:
The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn complaint
filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO
OLIVAREZ of the crime of VIOLATION OF RA 7610, committed as follows:

That on or about July 20, 1997, in the Municipality of San Pedro, Province of
Laguna, within the jurisdiction of this Honorable Court, said accused actuated
by lewd design did then and there wilfully, unlawfully and feloniously by
means of force and intimidation commit acts of lasciviousness on the person
of one CRISTINA B. ELITIONG, by touching her breasts and kissing her lips,
against her will, to her damage and prejudice.

CONTRARY TO LAW.[6]

The established facts of this case are as follows:

... The offended party Cristina Elitiong was a 16-year old high school student who with her
brothers were employed by the accused, 64-year old Isidro Olivarez, in the making of
sampaguita garlands. For one year she had been reporting for work during weekends at the
residence of the accused. Within the compound and at about three armslength from the main
door of the house was her workplace.

At about 11:30 oclock in the morning of July 20, 1997, Cristina, her two brothers Macoy and
Dodong, and one named Liezel were at their work when the accused who was near the main
door called for her. She dutifully approached him. The accused asked her if she had told her
mother that he gave her money, and when she said that she did not, he embraced her and held
her breast. The workers were facing the street so that the two were not seen. He pulled her to
the kitchen and, closing the kitchen door, kissed her on the lips. She pushed him away and went
back to her station. Her brother Macoy saw her crying when she came out of the house. She did
not say a word, but went to the faucet and washed her face.

The offended party continued to finish the garlands she was working on, and waited until the
afternoon for her wages. When she arrived at her home, she first told her mother that she no
longer wished to go back. When pressed for a reason, she said basta po mama ayaw ko ng
magtuhog. Finally, she told her mother what happened.

Aurora Elitiong, the mother, accompanied the offended party to the San Vicente Barangay Hall
on July 26 to report the incident and give a statement. Days later, Cristina gave another
statement to the local police.

In the defense version, the offended party and her brothers had slept overnight in the house of
the accused. When Isidro woke up in the early morning to relieve himself, he saw the girl
sleeping on the sofa. He admonished her to join her brothers in the basement. He went back to
his room and slept until 8 A.M. Two hours later, at 10 A.M., he left for the Caltex Service
Station which was only a five minute ride from his home by tricycle. His daughter Analee
Olivarez was staying in another house in the compound and attended a morning mass. When
she returned at 10:30 A.M., she no longer saw her father. Maritess Buen, the laundrywoman,
who was washing clothes outside the kitchen, saw the accused earlier. By 10 A.M., when she
entered the house, he already left. He returned by noontime.

The accused testified that he was at the Caltex station for two and a half hours waiting for the
shipment of flowers from Pampanga. The goods arrived at 12:15 P.M. He left shortly thereafter
and passed by the market before going home. He arrived at 12:30 P.M. The next several days
 were uneventful for him until his laundrywoman Maritess told him that there was a complaint
against him at the barangay office. A meeting took place between him and the girls family in
the presence of the barangay authorities. The girls mother was demanding P30,000 for the
settlement of the case, but he refused to cave in and told a barangay official Jaime Ramos that
he would rather see his accusers in court than give a centavo because he did not commit the
crime.[7]

The trial court found Olivarez guilty of violating Section 5 of R.A. 7610 and sentenced him to suffer an
indeterminate penalty of imprisonment from eight (8) years and one (1) day of prision mayor as minimum to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, to indemnify the
minor Cristina Elitiong in the amount of P15,000.00 as moral damages and to pay the costs.

On appeal, the decision of the trial court[8] was affirmed by the Court of Appeals. The motion for
reconsideration[9] filed by the accused was denied.[10] Hence, this petition for review[11] on the following
grounds:

I. The Honorable Court of Appeals committed grave abuse of discretion in not holding that the
essential elements in Violation of Section 5, Article III of Republic Act 7610, which
are age of the offended party and that she is an abused or exploited child as defined in
the law, not having been alleged in the Information, petitioner/accused cannot be found
guilty of said offense and must be acquitted.

II. The Honorable Court of Appeals erred and committed grave abuse of discretion in holding
that the Information charging petitioner/accused of Violation of Section 5, Republic
Act 7610, but failing to allege the essential elements of said offense, had substantially
complied with the requirements of due process for the accused.

III. The Honorable Court of Appeals erred and gravely abused its discretion in not reversing
the judgment of the trial court convicting the accused/petitioner and sentencing him to
suffer the penalty of imprisonment for alleged Violation of Section 5, Republic Act
7610, which was not alleged in the Information.[12]

Petitioner alleges that his right to be informed of the nature and cause of the accusation against him was
violated for failure to allege in the information the essential elements of the offense for which he is being
charged.

Section 5, Article III of R.A. 7610 states:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or female,
who for money, profit, or any other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
 ...
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its
medium period; ... (Italics supplied)

The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to other sexual
abuse.
3. The child, whether male or female, is below 18 years of age.[13]

Section 32, Article XIII, of the Implementing Rules and Regulations of R.A. 7610 defines lascivious
conduct as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia,

anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia,
anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.[14] (Emphasis
supplied)

The first element obtains in this case. It was established beyond reasonable doubt that petitioner kissed
Cristina and touched her breasts with lewd designs as inferred from the nature of the acts themselves and the
environmental circumstances.[15]

The second element, i.e., that the act is performed with a child exploited in prostitution or subjected to
other sexual abuse, is likewise present. As succinctly explained in People v. Larin:[16]

A child is deemed exploited in prostitution or subjected to other sexual abuse, when

the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate or
group. ...

It must be noted that the law covers not only a situation in which a child is abused for
profit, but also one in which a child, through coercion or intimidation, engages in lascivious
conduct. (Emphasis supplied)
 We reiterated this ruling in Amployo v. People:[17]

... As we observed in People v. Larin, Section 5 of Rep. Act No. 7610 does not merely cover a
situation of a child being abused for profit, but also one in which a child engages in any
lascivious conduct through coercion or intimidation...

Thus, a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct
under the coercion or influence of any adult. In this case, Cristina was sexually abused because she was coerced
or intimidated by petitioner to indulge in a lascivious conduct. Furthermore, it is inconsequential that the sexual
abuse occurred only once. As expressly provided in Section 3 (b) of R.A. 7610, the abuse may be habitual or
not. It must be observed that Article III of R.A. 7610 is captioned as Child Prostitution and Other Sexual Abuse
because Congress really intended to cover a situation where the minor may have been coerced or intimidated
into lascivious conduct, not necessarily for money or profit. The law covers not only child prostitution but also
other forms of sexual abuse. This is clear from the deliberations of the Senate:

Senator Angara. I refer to line 9, who for money or profit. I would like to amend this,
Mr. President, to cover a situation where the minor may have been coerced or intimidated into
this lascivious conduct, not necessarily for money or profit, so that we can cover those situations
and not leave loophole in this section.

The proposal I have is something like this: WHO FOR MONEY, PROFIT, OR ANY
OTHER CONSIDERATION OR DUE TO THE COERCION OR INFLUENCE OF ANY
ADULT, SYNDICATE OR GROUP INDULGE, et cetera.

The President Pro Tempore. I see. That would mean also changing the subtitle of
Section 4. Will it no longer be child prostitution?

Senator Angara. No, no. Not necessarily, Mr. President, because we are still talking of
the child who is being misused for sexual purposes either for money or for consideration. What
I am trying to cover is the other consideration. Because, here, it is limited only to the child
being abused or misused for sexual purposes, only for money or profit.

I am contending, Mr. President, that there may be situations where the child may not
have been used for profit or ...

The President Pro Tempore. So, it is no longer prostitution. Because the essence of
prostitution is profit.

Senator Angara. Well, the Gentleman is right. Maybe the heading ought to be
expanded. But, still, the President will agree that that is a form or manner of child abuse.

The President Pro Tempore. What does the Sponsor say? Will the Gentleman kindly
restate the amendment?

ANGARA AMENDMENT

Senator Angara. The new section will read something like this, Mr. President:
MINORS, WHETHER MALE OR FEMALE, WHO FOR MONEY, PROFIT, OR ANY
 OTHER CONSIDERATION OR INFLUENCE OF ANY ADULT, SYNDICATE OR GROUP
INDULGE IN SEXUAL INTERCOURSE, et cetera.

Senator Lina. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] Hearing none, the
amendment is approved.

How about the title, Child Prostitution, shall we change that too?

Senator Angara. Yes, Mr. President, to cover the expanded scope.

The President Pro Tempore. Is that not what we would call probable child abuse?

Senator Angara. Yes, Mr. President.

The President Pro Tempore. Subject to rewording. Is there any objection? [Silence]
Hearing none, the amendment is approved. x x x. (Italicization supplied)[18]

Petitioner makes much of the failure to allege in the information that Cristina was a child below 18 years
of age at the time the offense was committed. He insists that the Court of Appeals mistakenly relied on the case
of People v. Rosare[19] because unlike in Rosare, he had no personal knowledge of Cristinas age, which he
claims was not proven beyond reasonable doubt.

In all criminal prosecutions, the accused is entitled to be informed of the nature and cause of the
accusation against him.[20] A complaint is sufficient if it states the name of the accused; the designation of the
offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate date of the commission of the offense; and the place where the offense was
committed.[21]

The complaint or information shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the statute punishing it.[22] The
acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances
must be stated in ordinary and concise language and not necessarily in the language used in the statute but in
terms sufficient to enable a person of common understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to pronounce judgment.[23]

In the present case, the Court of Appeals found the information to be sufficient. Relying on the principle
laid down in People v. Rosare, it held:
 Before us is an information for violation of RA 7610 that, as in Rosare, fails to mention an
indispensable element of the offense, the age of the offended party, but makes allusion to
another document, the sworn complaint of the offended party, and declares it to be the basis
upon which the information was filed. This instrument is the complaint filed by the offended
party with the Municipal Trial Court of San Pedro, Laguna in which she stated that she was 16
years old at the time of the offense. It forms part of the initial records of the case and comes
before the posting of bail and entry of the plea of not guilty before the RTC. It appears that after
the charge was filed with the MTC, and as the preliminary investigation went underway, the
accused filed a manifestation stating that he had filed a counter-affidavit to the charge and
reserved the right to file a motion to quash the information if it was filed. The MTC found
probable cause against him and elevated the records to the provincial prosecutor for filing of
the information.

A complaint is under the Rules one of the two charging instruments for the offense of which
the accused was tried and convicted here. While the criminal action was instituted by the
complaint of the offended party, the information signed only by the fiscal ushered in the formal
trial process. But both are accusations in writing against the accused and serve the purpose of
enabling him to take the necessary legal steps for his defense. What is important is that the
information states that the accused is being charged of an offense under RA 7610 based on the
complaint of the offended party, to which the accused had adequately responded. Under these
conditions, the accused was fully apprised of the accusation against him. The purpose and
objective of the constitutional mandate are discharged and satisfied. The accused may not be
said to be taken by surprise by the failure of the information to state the age of the offended
party, when he had received the initiatory complaint where he was told how old the offended
party was.[24]

We agree with the ruling of the Court of Appeals. In People v. Rosare, the information did not allege
that the victim was a mental retardate which is an essential element of the crime of statutory rape. This Court
however sustained the trial courts judgment of conviction holding that the resolution of the investigating
prosecutor which formed the basis of the information, a copy of which is attached thereto, stated that the offended
party is suffering from mental retardation. It ruled that there was substantial compliance with the mandate that
an accused be informed of the nature of the charge against him. Thus:

Appellant contends that he cannot be convicted of statutory rape because the fact that
the victim was a mental retardate was never alleged in the information and, absent this element,
the acts charged negate the commission of the offense for which he was convicted by the lower
court.

Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided to motu
proprio take cognizance of the resolution issued by the investigating prosecutor in I.S. No. 92-
0197 dated June 2, 1992, which formed the basis of and a copy of which was attached to the
information for rape filed against herein appellant. Therein, it is clearly stated that the offended
party is suffering from mental retardation. We hold, therefore, that this should be deemed a
substantial compliance with the constitutional mandate that an accused be informed of the
nature of the charge against him. ...[25]

In People v. Villamor,[26] the information failed to allege the age of the offended party but since a copy
of the order issued by the investigating judge was attached in the record of the preliminary investigation clearly
stating that the complainant was nine years old, it was held that there was substantial compliance with the
mandate to inform the accused of the nature of the accusation. It was also declared that the defense cannot invoke
the element of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense, thus:

... Furthermore, even if the information filed did not allege that the complainant was nine years
old, there was substantial compliance with the constitutional mandate that an accused be
informed of the nature of the charge against him when the Order issued by the investigating
judge, a copy of which was attached in the record of the preliminary investigation, clearly stated
that the complainant was nine years old. Consequently, the defense cannot invoke the element
of surprise as to deprive it of the opportunity to suitably prepare for the accuseds defense.[27]

In People v. Galido,[28] the information for rape failed to allege the element of force or intimidation. The
Court ruled that this omission is not fatal since the complaint specifically charged the accused with three counts
of rape committed by means of force and intimidation. Thus:

Appellant avers that because the Informations on which he was arraigned and
convicted did not allege the element of force or intimidation, he was deprived of his
constitutional right to be informed of the nature and cause of the accusation against him. He
insists that such failure was a fatal defect that rendered the Informations void.

As a rule, the accused cannot be convicted of an offense, unless it is clearly charged in

the complaint or information. Otherwise, their constitutional right to be informed of the nature
and cause of the accusation against them would be violated.

In the present case, appellant correctly pointed out that the element of force or
intimidation should have been expressly alleged in the Informations. This omission is not fatal,
however, because the Complaint specifically accused him of three counts of rape committed by
means of force and intimidation...[29]

The same ground was adopted in People v. Mendez[30] which involved an information for rape that failed
to allege force or intimidation. We ruled therein that it was not a fatal omission because it was stated in the
complaint that accused Rosendo raped Virginita by means of force.

In People v. Torellos,[31] the Court treated the information for rape which failed to allege force and
intimidation as merely defective and that the deficiency was cured by the failure of the accused to assail the
insufficiency of the allegations in the Information and by competent evidence presented during trial.

Thus, while it is necessary to allege the essential elements of the crime in the information, the failure to
do so is not an irremediable vice. When the complaint or the resolution by the public prosecutor which contain
the missing averments is attached to the information and form part of the records, the defect in the latter is
effectively cured, and the accused cannot successfully invoke the defense that his right to be informed is
violated.
 In the instant case, the missing averment in the information is supplied by the Complaint which reads
in full:

COMPLAINT

The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of

VIOLATION OF RA 7610, committed as follows:

That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna,
Philippines and within the jurisdiction of this Honorable Court the said accused with lewd
design did then and there willfully, unlawfully and feloniously commit an act of lasciviousness
against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her
private parts and embracing her against her will.

CONTRARY TO LAW.[32]

Petitioner was furnished a copy of the Complaint which was mentioned in the information, hence he
was adequately informed of the age of the complainant. The prosecution has also established the minority of the
offended party through competent evidence. Cristina testified that she was 16 years old and a certification from
the Office of the Local Registrar of San Pedro, Laguna was presented showing that she was born on October 17,
1980.[33] The third element of sexual abuse is therefore present.

The information merely states that petitioner was being charged for the crime of violation of R.A. 7610
without citing the specific sections alleged to have been violated by petitioner. Nonetheless, we do not find this
omission sufficient to invalidate the information. The character of the crime is not determined by the caption or
preamble of the information nor from the specification of the provision of law alleged to have been violated,
they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or
information.[34] The sufficiency of an information is not negated by an incomplete or defective designation of
the crime in the caption or other parts of the information but by the narration of facts and circumstances which
adequately depicts a crime and sufficiently apprise the accused of the nature and cause of the accusation against
him.

True, the information herein may not refer to specific section/s of R.A. 7610 alleged to have been
violated by the petitioner, but it is all to evident that the body of the information contains an averment of the acts
alleged to have been performed by petitioner which unmistakably refers to acts punishable under Section 5 of
R.A. 7610. As to which section of R.A. 7610 is being violated by petitioner is inconsequential. What is
determinative of the offense is the recital of the ultimate facts and circumstances in the complaint or information.
 The prosecution has proved beyond reasonable doubt that petitioner committed acts of sexual abuse
against Cristina. The trial court found Cristinas testimony to be clear, candid, and straightforward.[35] Her
testimony, given in a categorical, straightforward, spontaneous and candid manner, is worthy of faith and
belief.[36] In the face of the accusations against him, petitioner could only interpose uncorroborated alibi and
denial. Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and categorical
identification provided by eyewitnesses.[37] Not only did Cristina identify the petitioner as her assailant but no
ill-motive was adduced why she would impute against him so grave a charge. This Court will not interfere with
the trial courts assessment of the credibility of witnesses, absent any indication that some material fact was
overlooked or a grave abuse of discretion committed. None of the exceptions obtain in the instant case.[38]

In addition to moral damages, a fine in the amount of P15,000.00 should likewise be imposed pursuant
to our ruling in Amployo v. People:[39]

It does not end there. In People v. Abadies, and with respect specifically to lascivious
conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine
of P30,000 for each count of lascivious conduct in addition to the award of moral damages on
the justification that

It will be noted that Section 5, Article II of Republic Act No. 7610

provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article
XII (Common Penal Provisions) thereof allows the imposition of a fine
subject to the discretion of the court, provided that the same is to be
administered as a cash fund by the Department of Social Welfare and
Development and disbursed for the rehabilitation of each child victim, or any
immediate member of his family if the latter is the perpetrator of the
offense. This provision is in accord with Article 39 of the Convention on the
Rights of the Child, to which the Philippines became a party on August 21,
1990, which stresses the duty of states parties to ensure the physical and
psychological recovery and social reintegration of abused and exploited
children in an environment which fosters their self-respect and human dignity.

With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos
(P15,000.00) on petitioner.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated January 9, 2004
in CA-G.R. CR No. 22860 and its resolution dated June 4, 2004, are AFFIRMED with MODIFICATION. In
addition to the award of P15,000.00 as moral damages, petitioner Isidro Olivarez is also ordered to pay a fine in
the amount of P15,000.00.

SO ORDERED.
 CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice
DISSENTING OPINION

Carpio, J.:

I dissent from the majority opinion.

I vote to declare petitioner Isidro Olivarez (Olivarez) guilty of acts of lasciviousness under Article 336

of the Revised Penal Code (RPC), and not of acts of lasciviousness under Section 5 of Republic Act No. 7610

(RA 7610).[1] The penalty under Article 336 of the RPC is prision correccional, while the penalty under Section

5 of RA 7610 is reclusion temporal in its medium period to reclusion perpetua.

I anchor my dissent on two grounds. First, the Information only charged Olivarez with acts of

lasciviousness under Article 336 of the RPC

and not with acts of lasciviousness under Section 5 of RA 7610. Second, the prosecution proved that Olivarez

committed acts of lasciviousness under Article 336 of the RPC and not acts of lasciviousness under Section 5 of

RA 7610.

Article 336 of the RPC provides as follows:

Art. 336. Acts of lasciviousness. Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances mentioned in
the preceding article, shall be punished by prision correccional.

The essential elements of acts of lasciviousness under Article 336 of the RPC are as follows:
 1. That the offender commits any act of lasciviousness or lewdness;
2. That the act of lasciviousness is committed against a person of either sex;
3. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; [or]
c. By means of fraudulent machination or grave abuse of authority; or
d. When the offended party is under 12 years of age or is demented.[2] (Emphasis
supplied)

On the other hand, Section 5 of RA 7610 provides as follows:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which
include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary benefit to a child with
the intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subject to other sexual abuse: Provided, That when the
victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of
the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which engages in prostitution in addition
to the activity for which the license has been issued to said establishment. (Emphasis supplied)

The majority opinion correctly enumerates the essential elements of the crime of acts of lasciviousness

under Section 5 of RA 7610. The majority opinion states:

The elements of sexual abuse under Section 5, Article III of R.A. 7610 are as follows:
 1. The accused commits the acts of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse.

3. The child, whether male or female, is below 18 years of age.[3]

(Emphasis supplied)

The majority opinion correctly distinguishes the first element from the second element. The first element

refers to the acts of lasciviousness that the accused performs on the child. The second element refers to the

special circumstance that the child (is) exploited in prostitution or subjected to other sexual abuse. This special

circumstance already exists when the accused performs acts of lasciviousness on the child. In short, the acts of

lasciviousness that the accused performs on the child are separate and different from the childs exploitation in

prostitution or subjection to other sexual abuse.

Under Article 336 of the RPC, the accused performs the acts of lasciviousness on a child who is neither exploited

in prostitution nor subjected to other sexual abuse. In contrast, under Section 5 of RA 7610, the accused

performs the acts of lasciviousness on a child who is either exploited in prostitution or subjected to other sexual

abuse.

Section 5 of RA 7610 deals with a situation where the acts of lasciviousness are committed on a child

already either exploited in prostitution or subjected to other sexual abuse. Clearly, the acts of lasciviousness

committed on the child are separate and distinct from the other circumstance that the child is either exploited in

prostitution or subjected to other sexual abuse.

The phrase other sexual abuse refers to any sexual abuse other than the acts of lasciviousness

complained of and other than exploitation in prostitution. Such other sexual abuse could fall under acts

encompassing [O]bscene publications and indecent shows mentioned in Section 3(d)(3) of RA 7610.[4]

Thus, a child performing in indecent shows in a cabaret is a child subjected to other sexual abuse. A

customer in such cabaret who commits acts of lasciviousness on the child is liable for violation of Section 5 of

RA 7610. Also, a photographer who commits acts of lasciviousness on a child he is shooting for an obscene
publication is liable for violation of Section 5 of RA 7610. The penalty for such acts of lasciviousness is more

severe than if the acts are committed without the special circumstances of the childs subjection to other sexual

abuse.

Section 5 of RA 7610 penalizes those who commit the act of sexual intercourse or lascivious conduct with a

child exploited in prostitution or subjected to other sexual abuse. The act of sexual intercourse or lascivious

conduct may be committed on a child already exploited in prostitution, whether the child engages in

prostitution for profit or someone coerces her into prostitution against her will. The element of profit or coercion

refers to the practice of prostitution, not to the sexual intercourse or lascivious conduct committed by the accused.

A person may commit acts of lasciviousness even on a prostitute, as when a person mashes the private parts of

a prostitute against her will.

The sexual intercourse or act of lasciviousness may be committed on a child already subjected to other

sexual abuse. The child may be subjected to such othersexual abuse for profit or through coercion, as when the

child is employed or coerced into pornography. A complete stranger, through force or intimidation, may commit

acts of lasciviousness on such child in violation of Section 5 of RA 7610.

The phrase other sexual abuse plainly means that the child is already subjected to sexual

abuse other than the crime for which the accused is charged under Section 5 of RA 7610. The other sexual

abuse is an element separate and distinct from the acts of lasciviousness that the accused performs on the child.

The majority opinion admits this when it enumerates the second element of the crime under Section 5 of RA

7610 that the lascivious act is performed with a child x x x subjected to other sexual abuse.

The Information filed against Olivarez for violation of RA 7610 states as follows:

The undersigned 4th Assistant Provincial Prosecution (sic) of Laguna upon a sworn
complaint filed by the private complainant, CRISTINA B. ELITIONG, hereby accuses ISIDRO
OLIVAREZ of the crime of VIOLATION OF RA 7610, committed as follows:
That on or about July 20, 1997, in the Municipality of San Pedro, Province
of Laguna, within the jurisdiction of this Honorable Court, said accused actuated by
lewd design did then and there wilfully, unlawfully and feloniously by means of force
and intimidation commit acts of lasciviousness on the person of one CRISTINA B.
 ELITIONG, by touching her breasts and kissing her lips, against her will, to her
damage and prejudice.

CONTRARY TO LAW.

There is nothing in the Information that alleges that the child Cristina B. Elitiong (Cristina) was exploited in

prostitution or subjected to other sexual abuse when the accused performed the acts of lasciviousness on her.

Even the Complaint signed by Cristina does not state that she was a child exploited in prostitution or

subjected to other sexual abuse. The Complaint alleges as follows:

COMPLAINT
The undersigned complainant, accuses ISIDRO OLIVAREZ, of the crime of
VIOLATION OF RA 7610, committed as follows:

That on or about 11:30 A.M. of July 20, 1997 at Brgy. San Vicente, San Pedro, Laguna,
Philippines and within the jurisdiction of this Honorable Court the said accused with lewd
design did then and there wilfully, unlawfully and feloniously commit an act of lasciviousness
against one CRISTINA ELITIONG Y BALDONO, 16 years old, by kissing and touching her
private parts and embracing her against her will.

CONTRARY TO LAW.

Even assuming that the Complaint can cure the defects in the Information, the Complaint does not state that

Cristina is a child subjected to other sexual abuse.

In short, the Information does not specifically allege the second essential element of the crime of acts

of lasciviousness under Section 5 of RA 7610. The majority opinion states that the second element of the crime

is that [T]he said act is performed with a child exploited in prostitution or subjected to other sexual abuse.

This special circumstance, warranting the imposition of a much heavier penalty for acts of lasciviousness, is not

alleged either in the Information or in the Complaint.

The fundamental rule is that the Information must allege all the elements of the crime. Sections 6[5] and

9,[6] Rule 110 of the Rules of Court mandate that the Information must allege all essential elements of the crime.

Section 6 of Rule 110 provides that the information is sufficient if it states x x x the acts or omissions complained
of as constituting the offense. Section 9 of Rule 110 further provides that the acts or omissions complained of as

constituting the offense x x x must be stated in ordinary and concise language.

Thus, in Balitaan v. Court of First Instance of Batangas,[7] the Court held:

It is fundamental that every element of which the offense is composed must be

alleged in the complaint or information. What facts and circumstances are necessary to be
stated must be determined by reference to the definitions and the essentials of the specific
crimes.

xxxx

The main purpose of requiring the various elements of a crime to be set out in an
information is to enable the accused to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the offense. (Emphasis supplied)

The Court has reiterated this ruling in subsequent cases.[8]

In the present case, since the Information failed to allege the second essential element of the crime as defined in

Section 5 of RA 7610, Olivarez cannot be convicted for violation of RA 7610. The Information is void to charge

Olivarez for violation of Section 5 of RA 7610. Otherwise, Olivarezs would be deprived of his constitutional

right to be informed of the charge against him.

However, the Information is sufficient to charge Olivarez for violation of Article 336 of the RPC. The special

circumstance that the child is subjected to other sexual abuse is not an element in the crime of acts of

lasciviousness under Article 336 of the RPC. Thus, the Information remains valid to charge Olivarez with acts

of lasciviousness, not under Section 5 of RA 7610, but under Article 336 of the RPC.

During trial, the prosecution proved that Olivarez used force on Cristina when Olivarez pulled her to

the kitchen and, closing the kitchen door, kissed her on the lips.[9] Olivarez also embraced (Cristina) and held

her breast.[10] Clearly, Olivarez committed acts of lasciviousness using force on the complainant. This is

sufficient to convict Olivarez for violation of Article 336 of the RPC.

The records, however, are bereft of any shred of evidence showing that Cristina was subjected to other sexual

abuse when Olivarez committed the acts of lasciviousness on her. Olivarez employed Cristina, with her two

brothers, to stitch sampaguita flowers. This was gainful and decent employment.
 If a child works as a nude model for an obscene magazine, then any act of lasciviousness committed on

such a child would warrant imposition of the heavier penalty under Section 5 of RA 7610. However, the

Information must allege the special circumstance that the child is subjected to other sexual abuse, which

circumstance the prosecution must prove during trial.

In the present case, the special circumstance that the complainant was subjected to other sexual

abuse was neither alleged in the Information nor proved during the trial.

Accordingly, I vote to convict Olivarez for violation of Article 336 of the RPC and to impose on him

the penalty of prision correccional in its medium period, there being no aggravating or mitigating

circumstances.

ANTONIO T. CARPIO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 169533 March 20, 2013

GEORGE BONGALON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Not every instance of the laying of hands on a child constitutes the crime of child abuse under Section 10 (a) of
Republic Act No. 7610.1 Only when the laying of hands is shown beyond reasonable doubt to be intended by
the accused to debase, degrade or demean the intrinsic worth and dignity of the child as a human being should
it be punished as child abuse. Otherwise, it is punished under the Revised Penal Code.

The Case

On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the petitioner for the crime of child
abuse under Section 10 (a) of Republic Act No. 7610.
 Antecedents

On June 26, 2000, the Prosecutor’s Office of Legazpi City charged the petitioner in the Regional Trial Court
(RTC) in Legazpi City with child abuse, an act in violation of Section 10(a) of Republic Act No. 7610,
alleging as follows:

That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously
commit on the person of JAYSON DELA CRUZ, a twelve year-old,

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or maltreatment by striking said
JAYSON DELA CRUZ with his palm hitting the latter at his back and by slapping said minor hitting his left
cheek and uttering derogatory remarks to the latter’s family to wit: "Mga hayop kamo, para dayo kamo digdi,
Iharap mo dito ama mo" (You all animals, you are all strangers here. Bring your father here), which acts of the
accused are prejudicial to the child’s development and which demean the intrinsic worth and dignity of the said
child as a human being.

CONTRARY TO LAW.3

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and Roldan, his older brother, both
minors, joined the evening procession for the Santo Niño at Oro Site in Legazpi City; that when the procession
passed in front of the petitioner’s house, the latter’s daughter Mary Ann Rose, also a minor, threw stones at
Jayson and called him "sissy"; that the petitioner confronted Jayson and Roldan and called them names like
"strangers" and "animals"; that the petitioner struck Jayson at the back with his hand, and slapped Jayson on
the face;4 that the petitioner then went to the brothers’ house and challenged Rolando dela Cruz, their father, to
a fight, but Rolando did not come out of the house to take on the petitioner; that Rolando later brought Jayson
to the Legazpi City Police Station and reported the incident; that Jayson also underwent medical treatment at
the Bicol Regional Training and Teaching Hospital;5 that the doctors who examined Jayson issued two medical
certificates attesting that Jayson suffered the following contusions, to wit: (1) contusion .5 x 2.5 scapular area,
left; and (2) +1x1 cm. contusion left zygomatic area and contusion .5 x 2.33 cm. scapular area, left.6

On his part, the petitioner denied having physically abused or maltreated Jayson. He explained that he only
talked with Jayson and Roldan after Mary Ann Rose and Cherrylyn, his minor daughters, had told him about
Jayson and Roldan’s throwing stones at them and about Jayson’s burning Cherrylyn’s hair. He denied shouting
invectives at and challenging Rolando to a fight, insisting that he only told Rolando to restrain his sons from
harming his daughters.7

To corroborate the petitioner’s testimony, Mary Ann Rose testified that her father did not hit or slap but only
confronted Jayson, asking why Jayson had called her daughters "Kimi" and why he had burned Cherrlyn’s
hair. Mary Ann Rose denied throwing stones at Jayson and calling him a "sissy." She insisted that it was
instead Jayson who had pelted her with stones during the procession. She described the petitioner as a loving
and protective father.8

Ruling of the RTC

After trial, the RTC found and declared the petitioner guilty of child abuse as charged, to wit:9

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered finding the accused
GEORGE BONGALON @ "GI" GUILTY beyond reasonable doubt of Violation of Republic Act No. 7610,
and is hereby ordered to undergo imprisonment of six (6) years and one (1) day to eight (8) years of prision
mayor in its minimum period.
SO ORDERED.

Ruling of the CA

On appeal, the petitioner assailed the credibility of the Prosecution witnesses by citing their inconsistencies.
He contended that the RTC overlooked or disregarded material facts and circumstances in the records that
would have led to a favorable judgment for him. He attacked the lack of credibility of the witnesses presented
against him, citing the failure of the complaining brothers to react to the incident, which was unnatural and
contrary to human experience.

The CA affirmed the conviction, but modified the penalty,10 viz:

WHEREFORE, premises considered, the decision dated October 20, 2003 of the Regional Trial Court, Branch
9 of Legazpi City is hereby AFFIRMED with MODIFICATION in that accused-appellant George Bongalon is
sentenced to suffer the indeterminate penalty of (4) years, two (2) months and one (1) day of prision
correccional, as minimum term, to six (6) years, eight (8) months and 1 day of prision mayor as the maximum
term.

Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the additional amount of ₱5,000 as
moral damages.

SO ORDERED.

Issues

The petitioner has come to the Court via a petition for certiorari under Rule 65 of the Rules of Court.11

The petitioner asserts that he was not guilty of the crime charged; and that even assuming that he was guilty,
his liability should be mitigated because he had merely acted to protect her two minor daughters.

Ruling of the Court

At the outset, we should observe that the petitioner has adopted the wrong remedy in assailing the CA’s
affirmance of his conviction. His proper recourse from the affirmance of his conviction was an appeal taken in
due course. Hence, he should have filed a petition for review on certiorari. Instead, he wrongly brought a
petition for certiorari. We explained why in People v. Court of Appeals:12

The special civil action for certiorari is intended for the correction of errors of jurisdiction only or grave abuse
of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court
within the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to lack or excess of jurisdiction. As observed in Land Bank of the Philippines v. Court of Appeals,
et al. "the special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and
not errors of judgment. The raison d’etre for the rule is when a court exercises its jurisdiction, an error
committed while so engaged does not deprived it of the jurisdiction being exercised when the error is
committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. In such a scenario, the administration of justice would not survive.
Hence, where the issue or question involved affects the wisdom or legal soundness of the decision–not the
jurisdiction of the court to render said decision–the same is beyond the province of a special civil action for
certiorari. The proper recourse of the aggrieved party from a decision of the Court of Appeals is a petition for
review on certiorari under Rule 45 of the Revised Rules of Court.
It is of no consequence that the petitioner alleges grave abuse of discretion on the part of the CA in his petition.
The allegation of grave abuse of discretion no more warrants the granting of due course to the petition as one
for certiorari if appeal was available as a proper and adequate remedy. At any rate, a reading of his
presentation of the issues in his petition indicates that he thereby imputes to the CA errors of judgment, not
errors of jurisdiction. He mentions instances attendant during the commission of the crime that he claims were
really constitutive of justifying and mitigating circumstances; and specifies reasons why he believes Republic
Act No. 7610 favors his innocence rather than his guilt for the crime charged.13 The errors he thereby
underscores in the petition concerned only the CA’s appreciation and assessment of the evidence on record,
which really are errors of judgment, not of jurisdiction.

Even if we were to treat the petition as one brought under Rule 45 of the Rules of Court, it would still be
defective due to its being filed beyond the period provided by law. Section 2 of Rule 45 requires the filing of
the petition within 15 days from the notice of judgment to be appealed. However, the petitioner received a
copy of the CA’s decision on July 15, 2005,14 but filed the petition only on September 12, 2005,15 or well
beyond the period prescribed by the Rules of Court.

The procedural transgressions of the petitioner notwithstanding, we opt to forego quickly dismissing the
petition, and instead set ourselves upon the task of resolving the issues posed by the petition on their merits.
We cannot fairly and justly ignore his plea about the sentence imposed on him not being commensurate to the
wrong he committed. His plea is worthy of another long and hard look. If, on the other hand, we were to
outrightly dismiss his plea because of the procedural lapses he has committed, the Court may be seen as an
unfeeling tribunal of last resort willing to sacrifice justice in order to give premium to the rigidity of its rules of
procedure. But the Rules of Court has not been intended to be rigidly enforced at all times. Rather, it has been
instituted first and foremost to ensure justice to every litigant. Indeed, its announced objective has been to
secure a "just, speedy and inexpensive disposition of every action and proceeding."16 This objective will be
beyond realization here unless the Rules of Court be given liberal construction and application as the noble
ends of justice demand. Thereby, we give primacy to substance over form, which, to a temple of justice and
equity like the Court, now becomes the ideal ingredient in the dispensation of justice in the case now awaiting
our consideration.

The petitioner’s right to liberty is in jeopardy. He may be entirely deprived of such birthright without due
process of law unless we shunt aside the rigidity of the rules of procedure and review his case. Hence, we treat
this recourse as an appeal timely brought to the Court. Consonant with the basic rule in criminal procedure that
an appeal opens the whole case for review, we should deem it our duty to correct errors in the appealed
judgment, whether assigned or not.17

The law under which the petitioner was charged, tried and found guilty of violating is Section 10 (a), Article
VI of Republic Act No. 7610, which relevantly states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other Conditions Prejudicial to the
Child’s Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for
other conditions prejudicial to the child’s development including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty
of prision mayor in its minimum period.

xxxx

Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No. 7610, as follows:

Section 3. Definition of terms. –

 xxxx

(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the
following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of
a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment
of his growth and development or in his permanent incapacity or death.

xxxx

Although we affirm the factual findings of fact by the RTC and the CA to the effect that the petitioner struck
Jayson at the back with his hand and slapped Jayson on the face, we disagree with their holding that his acts
constituted child abuse within the purview of the above-quoted provisions. The records did not establish
beyond reasonable doubt that his laying of hands on Jayson had been intended to debase the "intrinsic worth
and dignity" of Jayson as a human being, or that he had thereby intended to humiliate or embarrass Jayson.
The records showed the laying of hands on Jayson to have been done at the spur of the moment and in anger,
indicative of his being then overwhelmed by his fatherly concern for the personal safety of his own minor
daughters who had just suffered harm at the hands of Jayson and Roldan. With the loss of his self-control, he
lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human
being that was so essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is resolved in favor of
the petitioner as the accused. Thus, the Court should consider all possible circumstances in his favor.18

What crime, then, did the petitioner commit?

Considering that Jayson’s physical injury required five to seven days of medical attention,19 the petitioner was
liable for slight physical injuries under Article 266 (1) of the Revised Penal Code, to wit:

Article 266. Slight physical injuries and maltreatment. — The crime of slight physical injuries shall be
punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended
party for labor from one to nine days, or shall require medical attendance during the same period.

xxxx

The penalty for slight physical injuries is arresto menor, which ranges from one day to 30 days of
imprisonment.20 In imposing the correct penalty, however, we have to consider the mitigating circumstance of
passion or obfuscation under Article 13 (6) of the Revised Penal Code,21 because the petitioner lost his reason
and self-control, thereby diminishing the exercise of his will power.22 Passion or obfuscation may lawfully
arise from causes existing only in the honest belief of the accused.23 It is relevant to mention, too, that in
passion or obfuscation, the offender suffers a diminution of intelligence and intent. With his having acted
under the belief that Jayson and Roldan had thrown stones at his two minor daughters, and that Jayson had
burned Cherrlyn’s hair, the petitioner was entitled to the mitigating circumstance of passion. Arresto menor is
prescribed in its minimum period (i.e., one day to 10 days) in the absence of any aggravating circumstance that
offset the mitigating circumstance of passion. Accordingly, with the Indeterminate Sentence Law being
inapplicable due to the penalty imposed not exceeding one year,24 the petitioner shall suffer a straight penalty
of 10 days of arresto menor.

The award of moral damages to Jayson is appropriate. Such damages are granted in criminal cases resulting in
physical injuries.25 The amount of ₱5,000.00 fixed by the lower courts as moral damages is consistent with the
current jurisprudence.26

WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a new judgment: (a)
finding petitioner George Bongalon GUlLTY beyond reasonable doubt of the crime of SLIGHT PHYSICAL
INJURIES under paragraph 1, Article 266, of the Revised Penal Code; (b) sentencing him to suffer the penalty
of 10 days of arresto menor; and (c) ordering him to pay Jayson Dela Cruz the amount of ₱5,000.00 as moral
damages, plus the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 173988 October 8, 2014

FELINA ROSALDES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:
The petitioner, a public schoolteacher, was charged with and found guilty of child abuse, a violation of
Republic Act No. 7610.1 The victim was her own Grade 1 pupil whom she physically maltreated for having
accidentally bumped her knee while she was drowsing off on a bamboo sofa as he entered the classroom. Her
maltreatment left him with physical injuries, as duly certified by a physician.

Whether or not the petitioner thereby committed child abuse is the question that this appeal must determine, in
light of the Court's pronouncement in Bongalon v. People of the Philippines2 that:

Not every instance of the laying of hands on a child constitutes the crime of child abuse under Section 10 (a) of
Republic Act No. 7610. Only when the laying of hands is shown beyond reasonable doubt to be intended by
the accused to debase, degrade or demean the intrinsic worth and dignity of the child as a human being should
it be punished as child abuse. Otherwise, it is punished under the Revised Penal Code.

Antecedents

The State, through the Office ofthe Solicitor General, summed up the factual antecedents in its comment,3 as
follows:

On February 13, 1996, seven yearold Michael Ryan Gonzales, then a Grade 1 pupil at Pughanan Elementary
School located in the Municipality of Lambunao, Iloilo, was hurriedly entering his classroom when he
accidentally bumped the knee of his teacher, petitioner Felina Rosaldes, who was then asleep on a bamboo sofa
(TSN, March 14, 1997, pp. 5-6). Roused from sleep, petitioner asked Michael Ryan to apologize to her. When
Michael did not obey but instead proceeded to his seat (TSN, March 14, 1997, p. 6), petitioner went to Michael
and pinched him on his thigh. Then, she held him up by his armpits and pushed him to the floor. As he fell,
Michael Ryan’s body hit a desk. As a result, he lost consciousness. Petitioner proceeded topick Michael Ryan
up by his ears and repeatedly slammed him down on the floor. Michael Ryan cried (TSN, March 14, 1997, p.
6; TSN, November 13, 1997, p. 7).

After the incident, petitioner proceeded to teach her class. During lunch break, Michael Ryan, accompanied by
two of his classmates, Louella Loredo and Jonalyn Gonzales, went home crying and told his mother about the
incident (TSN, March 14, 1997, p. 7). His mother and his Aunt Evangeline Gonzales reported the incident to
their Barangay Captain, Gonzalo Larroza (TSN, February 1, 1999, p. 4) who advised them to have Michael
Ryan examined by a doctor. Michael Ryan’s aunt and Barangay Councilman Ernesto Ligante brought him to
the Dr. Ricardo Y. Ladrido Hospital where he was examined by Dr. Teresita Castigador. They, likewise,
reported the incident to the Police Station (TSN, July 27, 1997, p. 6; TSN, February 1, 1999, p. 4).

The medical certificate issued by Dr. Teresita Castigador reads, in part:

1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;

2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

The petitioner was criminally charged with child abusein the Regional Trial Court in Iloilo City (RTC), and the
case was assigned to Branch 27 of that court. The information alleged as follows: The Provincial Prosecutor of
Iloilo, upon approval and Directive of the Deputy OMBUDSMAN for the Visayas accuses FELINA
ROSALDES of the crime of VIOLATION OF CHILD ABUSE LAW
(Section 10 (a) of R.A. 7610), committed as follows:

That on or about the 13th day of February 1996, in the Municipality of Lambunao, Province of Iloilo,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a public
school teacher in Grade 1 of Pughanan Elementary School, with a Salary Grade below 26, under the DECS,
did then and there willfully, unlawfully and feloniously maltreat her pupil Michael Ryan Gonzales, a seven
year old child, by pinching him on different parts of his body, and thereafter slumping him to the ground,
thereby causing Michael Ryan Gonzales to lose his consciousness and has suffered injuries on different parts
of his body.

CONTRARY TO LAW.4

On June 26, 2003, the RTC rendered judgment convicting the petitioner of child abuse,5 disposing as follows:

WHEREFORE, finding the accused guilty beyond reasonable doubt of Violation of Section 10 (a), Article VI
of R.A. 7610, the Court sentences her to an indeterminate prison term ranging from four (4) years, two (2)
months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor,
as maximum, and to pay the costs.

No pronouncement as to civil liability, the same not having been proved.

SO ORDERED.6

On appeal, the CA affirmed the conviction of the petitioner through its assailed decision promulgated on May
11, 2005,7 with a modification of the penalty, viz: WHEREFORE, premises considered, judgment is hereby
rendered by us DISMISSING the appeal filed in this case and AFFIRMING the decision rendered on June 26,
2003 by the court a quo in Criminal Case No. 46893 with the MODIFICATION that the accusedappellant is
sentenced to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as the minimum of it, to ten (10) years and one (1) day of prision mayor, as the maximum
thereof.

IT IS SO ORDERED.8

In her petition for review on certiorari,9 the petitioner submits that:

The Court of Appeals erred in convicting the petitioner by holding that the acts of the petitioner constitute
child abuse penalized under Section 10 (a) of Republic Act No. 7610[,] and notunder the Revised Penal Code.

II

The Court of Appeals erred in convicting the petitioner by holding that petitioner’s constitutional right to due
process and her right to be informed of the nature and cause of the accusation against her was not violated
when the essential elements of the crime charged were not properly recited in the information.10

Countering, the State, through the OSG, insists that the issues the petitioner is raising are mainly factual and,
therefore, not reviewable under the mode of appeal chosen; that the affirmance of her conviction by the CA
was in accord with the pertinent law and jurisprudence, and supported by the overwhelming evidence of the
trial; and that the information charging her with child abuse was sufficient in form and substance.11
 Ruling of the Court

The appeal lacks merit.

First of all, the State correctly contends that the petitioner could raise only questions of law in her present
recourse. Under Rule 45 of the Rules of Court, the appeal is limited to questionsof law. The immediate
implication of the limitation is to have the findings of fact by the CA, which affirmed the findings of fact by
the trial court, conclude the Court by virtue of its not being a trier of fact. As such, the Court cannot analyze or
weigh the evidence all over again.

It is true that the limitation of the review to errors of law admits of exceptions. Under Section 4, Rule 3 of the
Internal Rules of the Supreme Court, the following situations are the exceptions in which the Court may
review findings of fact by the lower courts, to wit: (a) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (b) the inference made is manifestly mistaken; (c) there is grave abuse of
discretion; (d) the judgment is based on a misapprehension of facts; (e) the findings of fact are conflicting; (f)
the collegial appellate courts went beyond the issues of the case, and their findings are contrary to the
admissions of both appellant and appellee; (g) the findings of fact of the collegial appellate courts are contrary
to those of the trial court; (h) said findings of fact are conclusions without citation of specific evidence on
which they are based; (i) the facts set forth in the petition aswell as in the petitioner’s main and reply briefs are
not disputed by the respondents; (j) the findings of fact of the collegial appellate courts are premised on the
supposed evidence, but are contradicted by the evidence on record; and (k) all other similar and exceptional
cases warranting a review of the lower courts’ findings of fact. A further exception is recognized when the CA
manifestly overlooked certain relevant facts not disputed bythe parties, which, if properly considered, would
justify a different conclusion.12 Yet, none of the exceptions applies herein.

Secondly, the petitioner contends that she did not deliberately inflict the physical injuries suffered by
MichaelRyan to maltreat or malign him in a manner that would debase, demean or degrade his dignity. She
characterizes her maltreatment as anact of discipline that she as a school teacher could reasonably do towards
the development of the child. She insists that her act further came under the doctrine of in loco parentis.

The contention of the petitioner is utterly bereft of merit.

Although the petitioner, as a school teacher, could duly discipline Michael Ryan as her pupil, her infliction of
the physical injuries on him was unnecessary, violent and excessive. The boy even fainted from the violence
suffered at her hands.13 She could not justifiably claim that she acted only for the sake of disciplining him. Her
physical maltreatment of him was precisely prohibited by no less than the Family Code, which has expressly
banned the infliction of corporal punishmentby a school administrator, teacher or individual engaged in child
care exercising special parental authority (i.e., in loco parentis), viz:

Article 233. The person exercising substitute parental authority shall have the same authority over the person
of the child as the parents.

In no case shall the school administrator, teacher or individual engaged in child care exercising special parental
authority inflict corporal punishment upon the child. (n)

Proof of the severe results of the petitioner’s physical maltreatment of Michael Ryan was provided by Dr.
Teresita Castigador, the Medico-Legal Officer of the Dr. Ricardo Y. Ladrido Memorial Hospital in Iloilo who
examined the victim at about 1:00 o’clock in the afternoon of February 13, 1996, barely three hours from the
timethe boy had sustained his injuries. Her Medical Report stated as follows:

1. Petechiae and tenderness of both external ears 1x2 cm. and 1x1 cm.;
 2. Lumbar pains and tenderness at area of L3-L4;

3. Contusions at left inner thigh 1x1 and 1x1 cm.;

4. Tenderness and painful on walking especially at the area of femoral head.

Reflecting her impressions of the physical injuries based on the testimonial explanations of Dr. Castigador, the
trial judge observed in the decision of June 26, 2003:

A petechiae (wound no. 1), according to Dr. Castigador is a discoloration of the skin caused by the
extravasation of blood beneath it. She opined that the petechiae and tenderness of the ears of the victim could
have been caused by pinching. As to the lumbar pain and tenderness at the third and fourth level of the
vertebrae (wound no. 2), the doctor testified that during her examination of the victim the latter felt pain when
she put pressure on the said area. She stated that this could be caused by pressure or contact with a hard object.
Wound No. 3 is located on the victim’sleft inner thigh. According to her this could not have been caused by
ordinary pinching with pressure. Wound No. 4 is located on the upper part of the left thigh. Dr. Castigador
testified that she noticed that the boy was limping as he walked.14

Section 3 of RepublicAct No. 7610 defines child abusethusly:

xxxx

(b) "Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the
following:

(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of
a child as a human being;

(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment
of his growth and development or in his permanent incapacity or death.

xxxx

In the crime charged against the petitioner, therefore, the maltreatment may consist of an act by deedsor by
wordsthat debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. The act
need not be habitual. The CA concluded that the petitioner "went overboard in disciplining Michael Ryan, a
helpless and weak 7-year old boy, when she pinched hard Michael Ryan on the left thigh and when she held
him in the armpits and threw him on the floor[; and as] the boy fell down, his body hit the desk causing him to
lose consciousness [but instead] of feeling a sense of remorse, the accused-appellant further held the boy up by
his ears and pushed him down on the floor."15 On her part, the trial judge said that the physical pain
experienced by the victim had been aggravated by an emotional trauma that caused him to stop going to school
altogether out of fear of the petitioner, compelling his parents to transfer him to another school where he had to
adjust again.16 Such established circumstances proved beyond reasonable doubt thatthe petitioner was guilty of
child abuse by deeds that degraded and demeaned the intrinsic worth and dignity of Michael Ryan as a human
being.
It was also shown that Michael Ryan’s physical maltreatment by the petitioner was neither her first or only
maltreatment of a child. Prosecution witness Louella Loredo revealed on cross examination that she had also
experienced the petitioner’s cruelty.17 The petitioner was also convicted by the RTC in Iloilo City (Branch 39)
in Criminal Case No. 348921 for maltreatment of another childnamed Dariel Legayada.18 Such previous
incidents manifested that the petitioner had "a propensity for violence," as the trial judge stated in her decision
of June 26, 2003.19

Thirdly, the petitioner submits that the information charging her with child abuse was insufficient in form and
substance, in that the essential elements of the crime charged were not properly alleged therein; and that her
constitutional and statutory right to due process of law was consequently violated.

The petitioner’s submission deserves scant consideration.

Under Section 6, Rule 110 of the Rules of Court, the information is sufficient if it states the name of the
accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the proximate date of the commission of the offense; and the place
where the offense was committed.

The information explicitly averred the offense of child abusecharged against the petitioner in the context of the
statutory definition of child abuse found in Section 3 (b) of Republic Act No. 7610, supra, and thus complied
with the requirements of Section 6, Rule 110 of the Rules of Court. Moreover, the Court should no longer
entertain the petitioner’s challenge against the sufficiency of the information in form and substance. Her last
chance to pose the challenge was prior to the time she pleaded to the information through a motion to quash on
the ground that the information did not conform substantially to the prescribed form, or did not charge an
offense. She did not do so, resulting in her waiver of the challenge.

Fourthly, the RTC did not grant civil damages as civil liability ex delictobecause no evidence had been
adduced thereon.20 The CA saw nothing wrong with the omission by the trial court. The explanation tendered
by the trial judge for the omission was misplaced, however, because even without proof of the actual expenses,
or testimony on the victim’s feelings, the lower courts still had the authority to define and allow civil liability
arising from the offense and the means to fix their extent. The child abuse surely inflicted on Michael Ryan
physical and emotional trauma as well as moral injury. It cannot also be denied that his parents necessarily
spent for his treatment. We hold that both lower courts committed a plain error that demands correction by the
Court. Indeed, as the Court pointed out in Bacolod v. People,21 it was "imperative that the courts prescribe the
proper penalties when convicting the accused, and determine the civil liability to be imposed on the accused,
unless there has been a reservation of the action to recover civil liability or a waiver of its recovery,"
explaining the reason for doing so in the following manner:

It is not amiss to stress that both the RTC and the CA disregarded their express mandate under Section 2, Rule
120 of the Rules of Courtto have the judgment, if it was of conviction, state: "(1) the legal qualification of the
offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances
which attended its commission; (2) the participation ofthe accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or
damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if
there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or
waived." Their disregard compels us to actas we now do lest the Court be unreasonably seen as tolerant of their
omission. That the Spouses Cogtas did not themselves seek the correction of the omission by an appeal is no
hindrance to this action because the Court, as the final reviewing tribunal, has not only the authority but also
the duty to correct at any time a matter of law and justice.1âwphi1

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are properly
entitled to by law or in equity under the established facts. Their judgments will not be worthy of the name
unless they thereby fully determine the rights and obligations of the litigants. It cannot be otherwise, for only
by a full determination of such rights and obligations would they betrue to the judicial office of administering
justice and equity for all. Courts should then be alert and cautious in their rendition of judgments of conviction
in criminal cases. They should prescribe the legal penalties, which is what the Constitution and the law require
and expect them to do. Their prescription of the wrong penalties will be invalid and ineffectual for being done
without jurisdiction or in manifest grave abuse of discretion amounting to lack of jurisdiction. They should
also determine and set the civil liability ex delictoof the accused, in order to do justice to the complaining
victims who are always entitled to them. The Rules of Court mandates them to do so unless the enforcement of
the civil liability by separate actions has been reserved or waived.22

Moral damages should be awarded to assuage the moral and emotional sufferings of the victim, and in that
respect the Court believes and holds that ₱20,000.00 is reasonable. The victim was likewise entitled to
exemplary damages, considering that Article 2230 of the Civil Code authorizes such damages if at least one
aggravating circumstance attended the commission of the crime. The child abuse committed by the petitioner
was aggravated her being a public school teacher, a factor in raising the penalty to its maximum period
pursuantto Section 31(e) of Republic Act No. 7610. The amount of ₱20,000.00 as exemplary damages is
imposed on in order to set an example for the public good and as a deterrent to other public school teachers
who violate the ban imposed by Article 233 of the Family Code, supra, against the infliction of corporal
punishment on children under their substitute parental authority. The lack of proof of the actual expenses for
the victim’s treatmentshould not hinder the granting of a measure of compensation in the formof temperate
damages, which, according to Article 2224 of the Civil Code, may be recovered when some pecuniary loss has
been suffered butits amount cannot be proved with certainty. There being no question aboutthe injuries
sustained requiring medical treatment, temperate damages ofat least ₱20,000.00 are warranted, for it would be
inequitable not to recognize the need for the treatment. Lastly, interest of 6% per annum shall be charged on all
the items of civil liability, to be reckoned from the finality of this decision until full payment.

The penalty for the child abusecommitted by the petitioner is that prescribed in Section 10(a) of Republic Act
No. 7610, viz:

Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the
Child's Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for
other conditions prejudicial to the child's development including those covered by Atiicle 59 of Presidential
Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty
of prision mayor in its minimum period.

xxxx

The CA revised the penalty fixed by the R TC by imposing the indeterminate penalty of four years, two
months and one day of prision correccional, as minimum, to 10 years and one day of prision mayor, as the
maximum, on the ground that the offense was aggravated by the petitioner being a public schoolteacher.23 It
cited Section 3 l(e) of Republic Act No. 7610, which commands that the penalty provided in the Act "shall be
imposed in its maximum period if the offender is a public officer or employee." Her being a public
schoolteacher was alleged in the information and established by evidence as well as admitted by her. The
revised penalty was erroneous, however, because Section 10 (a) of Republic Act No. 7610 punishes the crime
committed by the petitioner with prision mayor in its minimum period, whose three periods are six years and
one day to six years and eight months, for the minimum period; six years, eight months and one day to seven
years and four months, for the medium period; and seven years, four months and one day to eight years, for the
maximum period. The maximum of the indeterminate sentence should come from the maximum period,
therefore, and the Court fixes it at seven years, four months and one day of prision mayor. The minimum of the
indeterminate sentence should come from prision correccional in the maximum period, the penalty next lower
than prision mayor in its minimum period, whose range is from four years, two months and one day to six
years.1âwphi1 Accordingly, the minimum of the indeterminate sentence is four years, nine months and 11
days, and the maximum is seven years, four months and one day of prision mayor.

WHEREFORE, the Court AFFIRMS the decision promulgated on May 11, 2005, subject to the
MODIFICATIONS that: (a) the petitioner shall suffer the indeterminate penalty of four (4) years, nine (9)
months and eleven (11) days of prision correccional, as minimum, to seven (7) years, four (4) months and one
(1) day of pr is ion mayor, as the maximum; (b) the petitioner shall pay to Michael Ryan Gonzales ₱20,000.00
as moral damages, ₱20,000.00 as exemplary damages, and ₱20,000.00 as temperate damages, plus interest at
the rate of 6% per annum on each item of the civil liability reckoned from the finality of this decision until full
payment; and (c) the petitioner shall pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 206248 February 18, 2014

GRACE M. GRANDE, Petitioner,

vs.
PATRICIO T. ANTONIO, Respondent.

DECISION

VELASCO, JR., J.:

Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24, 2012
Decision1 and March 5, 2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 96406.

As culled from the records, the facts of this case are:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived
together as husband and wife, although Antonio was at that time already married to someone else.3 Out of this
illicit relationship, two sons were born: Andre Lewis (on February 8, 1998) and Jerard Patrick (on October 13,
1999).4 The children were not expressly recognized by respondent as his own in the Record of Births of the
children in the Civil Registry. The parties’ relationship, however, eventually turned sour, and Grande left for
the United States with her two children in May 2007. This prompted respondent Antonio to file a Petition for
Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody,
Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction before the
Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC), appending a notarized Deed of Voluntary
Recognition of Paternity of the children.5

On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Antonio, ruling that "[t]he
evidence at hand is overwhelming that the best interest of the children can be promoted if they are under the
sole parental authority and physical custody of [respondent Antonio]."6 Thus, the court a quo decreed the
following:

WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s] prayer for recognition and
the same is hereby judicially approved. x x x Consequently, the Court forthwith issues the following Order
granting the other reliefs sought in the Petition, to wit:

a. Ordering the Office of the City Registrar of the City of Makati to cause the entry of the name of
[Antonio] as the father of the aforementioned minors in their respective Certificate of Live Birth and
causing the correction/change and/or annotation of the surnames of said minors in their Certificate of
Live Birth from Grande to Antonio;

b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over the persons
of their minor children, Andre Lewis Grande and Jerard Patrick Grande;

c. Granting [Antonio] primary right and immediate custody over the parties’ minor children Andre
Lewis Grandre and Jerard Patrick Grande who shall stay with [Antonio’s] residence in the Philippines
from Monday until Friday evening and to [Grande’s] custody from Saturday to Sunday evening;

d. Ordering [Grande] to immediately surrender the persons and custody of minors Andre Lewis
Grande and Jerard Patrick Grande unto [Antonio] for the days covered by the Order;

e. Ordering parties to cease and desist from bringing the aforenamed minors outside of the country,
without the written consent of the other and permission from the court.

f. Ordering parties to give and share the support of the minor children Andre Lewis Grande and Jerard
Patrick Grande in the amount of ₱30,000 per month at the rate of 70% for [Antonio] and 30% for
[Grande].7(Emphasis supplied.)

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by the trial court in
its Resolution dated November 22, 20108 for being pro forma and for lack of merit.

Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly
ruling contrary to the law and jurisprudence respecting the grant of sole custody to the mother over her
illegitimate children.9 In resolving the appeal, the appellate court modified in part the Decision of the RTC.
The dispositive portion of the CA Decision reads:

WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the Regional Trial
Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read
as follows:
 a. The Offices of the Civil Registrar General and the City Civil Registrar of Makati City are
DIRECTED to enter the surname Antonio as the surname of Jerard Patrick and Andre Lewis, in their
respective certificates of live birth, and record the same in the Register of Births;

b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the
custody of their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the
full or sole custody of these minor children;

c. [Antonio] shall have visitorial rights at least twice a week, and may only take the children out upon
the written consent of [Grande]; and

d. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of ₱30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]. (Emphasis supplied.)

In ruling thus, the appellate court ratiocinated that notwithstanding the father’s recognition of his children, the
mother cannot be deprived of her sole parental custody over them absent the most compelling of
reasons.10 Since respondent Antonio failed to prove that petitioner Grande committed any act that adversely
affected the welfare of the children or rendered her unsuitable to raise the minors, she cannot be deprived of
her sole parental custody over their children.

The appellate court, however, maintained that the legal consequence of the recognition made by respondent
Antonio that he is the father of the minors, taken in conjunction with the universally protected "best-interest-
of-the-child" clause, compels the use by the children of the surname "ANTONIO."11

As to the issue of support, the CA held that the grant is legally in order considering that not only did Antonio
express his willingness to give support, it is also a consequence of his acknowledging the paternity of the
minor children.12Lastly, the CA ruled that there is no reason to deprive respondent Antonio of his visitorial
right especially in view of the constitutionally inherent and natural right of parents over their children.13

Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion for reconsideration,
particularly assailing the order of the CA insofar as it decreed the change of the minors’ surname to "Antonio."
When her motion was denied, petitioner came to this Court via the present petition. In it, she posits that Article
176 of the Family Code––as amended by Republic Act No. (RA) 9255, couched as it is in permissive
language––may not be invoked by a father to compel the use by his illegitimate children of his surname
without the consent of their mother.

We find the present petition impressed with merit.

The sole issue at hand is the right of a father to compel the use of his surname by his illegitimate children upon
his recognition of their filiation. Central to the core issue is the application of Art. 176 of the Family Code,
originally phrased as follows:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall
be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-
half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force.

This provision was later amended on March 19, 2004 by RA 925514 which now reads:
Art. 176. – Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by their father through the record of
birth appearing in the civil register, or when an admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the right to institute an action before the regular
courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. (Emphasis supplied.)

From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall use the surname
of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly recognized
by the father through the record of birth appearing in the civil register or when an admission in a public
document or private handwritten instrument is made by the father. In such a situation, the illegitimate child
may use the surname of the father.

In the case at bar, respondent filed a petition for judicial approval of recognition of the filiation of the two
children with the prayer for the correction or change of the surname of the minors from Grande to Antonio
when a public document acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of
Court15 is enough to establish the paternity of his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration of his children’s surname as Antonio.

Parental authority over minor children is lodged by Art. 176 on the mother; hence, respondent’s prayer has no
legal mooring. Since parental authority is given to the mother, then custody over the minor children also goes
to the mother, unless she is shown to be unfit.

Now comes the matter of the change of surname of the illegitimate children. Is there a legal basis for the court
a quo to order the change of the surname to that of respondent?

Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and unequivocal provision of
Art. 176 of the Family Code, as amended by RA 9255.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It
is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate
the surname of their illegitimate children.

Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what
it says and it must be given its literal meaning free from any interpretation.16 Respondent’s position that the
court can order the minors to use his surname, therefore, has no legal basis.

On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by
its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is
under no compulsion to use the surname of his illegitimate father. The word "may" is permissive and operates
to confer discretion17 upon the illegitimate children.

It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is
their best interest. On the matter of children’s surnames, this Court has, time and again, rebuffed the idea that
the use of the father’s surname serves the best interest of the minor child. In Alfon v. Republic,18 for instance,
this Court allowed even a legitimate child to continue using the surname of her mother rather than that of her
legitimate father as it serves her best interest and there is no legal obstacle to prevent her from using the
surname of her mother to which she is entitled. In fact, in Calderon v. Republic,19 this Court, upholding the
best interest of the child concerned, even allowed the use of a surname different from the surnames of the
child’s father or mother. Indeed, the rule regarding the use of a child’s surname is second only to the rule
requiring that the child be placed in the best possible situation considering his circumstances.
In Republic of the Philippines v. Capote,20 We gave due deference to the choice of an illegitimate minor to use
the surname of his mother as it would best serve his interest, thus:

The foregoing discussion establishes the significant connection of a person’s name to his identity, his status in
relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters
should not be taken lightly as to deprive those who may, in any way, be affected by the right to present
evidence in favor of or against such change.

The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper remedy, a petition
for change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements.
After hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the
hearing of Giovanni’s petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is
entitled to change his name as he was never recognized by his father while his mother has always recognized
him as her child. A change of name will erase the impression that he was ever recognized by his father. It is
also to his best interest as it will facilitate his mother’s intended petition to have him join her in the United
States. This Court will not stand in the way of the reunification of mother and son. (Emphasis supplied.)

An argument, however, may be advanced advocating the mandatory use of the father’s surname upon his
recognition of his illegitimate children, citing the Implementing Rules and Regulations (IRR) of RA
9255,21 which states:

Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father,
either at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private instrument, the child shall use the surname of the
father, provided the registration is supported by the following documents:

xxxx

7.2. For Births Previously Registered under the Surname of the Mother

7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname of the father upon
the submission of the accomplished AUSF [Affidavit of Use of the Surname of the Father].

7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of the father
upon submission of a public document or a private handwritten instrument supported by the documents listed
in Rule 7.1.2.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of
majority. The consent may be contained in a separate instrument duly notarized.

xxxx

Rule 8. Effects of Recognition

8.1 For Births Not Yet Registered

8.1.1 The surname of the father shall be entered as the last name of the child in the Certificate of Live Birth.
The Certificate of Live Birth shall be recorded in the Register of Births.

xxxx

8.2 For Births Previously Registered under the Surname of the Mother

8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or in a separate
public document or in a private handwritten document, the public document or AUSF shall be recorded in the
Register of Live Birth and the Register of Births as follows:

"The surname of the child is hereby changed from (original surname) to (new surname) pursuant to RA 9255."

The original surname of the child appearing in the Certificate of Live Birth and Register of Births shall not be
changed or deleted.

8.2.2 If filiation was not expressly recognized at the time of registration, the public document or AUSF shall
be recorded in the Register of Legal Instruments. Proper annotation shall be made in the Certificate of Live
Birth and the Register of Births as follows:

"Acknowledged by (name of father) on (date). The surname of the child is hereby changed from (original
surname) on (date) pursuant to RA 9255." (Emphasis supplied.)

Nonetheless, the hornbook rule is that an administrative issuance cannot amend a legislative act. In MCC
Industrial Sales Corp. v. Ssangyong Corporation,22 We held:

After all, the power of administrative officials to promulgate rules in the implementation of a statute is
necessarily limited to what is found in the legislative enactment itself. The implementing rules and regulations
of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the
Legislature. Thus, if a discrepancy occurs between the basic law and an implementing rule or regulation, it is
the former that prevails, because the law cannot be broadened by a mere administrative issuance — an
administrative agency certainly cannot amend an act of Congress.

Thus, We can disregard contemporaneous construction where there is no ambiguity in law and/or the
construction is clearly erroneous.23 What is more, this Court has the constitutional prerogative and authority to
strike down and declare as void the rules of procedure of special courts and quasi- judicial bodies24 when
found contrary to statutes and/or the Constitution.25 Section 5(5), Art. VIII of the Constitution provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255 insofar as it
provides the mandatory use by illegitimate children of their father’s surname upon the latter’s recognition of
his paternity.

To conclude, the use of the word "shall" in the IRR of RA 9255 is of no moment. The clear, unambiguous, and
unequivocal use of "may" in Art. 176 rendering the use of an illegitimate father’s surname discretionary
controls, and illegitimate children are given the choice on the surnames by which they will be known.

At this juncture, We take note of the letters submitted by the children, now aged thirteen (13) and fifteen (15)
years old, to this Court declaring their opposition to have their names changed to "Antonio."26 However, since
these letters were not offered before and evaluated by the trial court, they do not provide any evidentiary
weight to sway this Court to rule for or against petitioner.27 A proper inquiry into, and evaluation of the
evidence of, the children's choice of surname by the trial court is necessary.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision of the Court of
Appeals in CA-G.R. CV No. 96406 is MODIFIED, the dispositive portion of which shall read:

WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed Decision of the Regional Trial
Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read
as follows:

a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre Lewis to the
custody of their mother herein appellant, Grace Grande who by virtue hereof is hereby awarded the
full or sole custody of these minor children;

b. [Antonio] shall have visitation rights28 at least twice a week, and may only take the children out
upon the written consent of [Grande]:

c. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and
Andre Lewis in the amount of ₱30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]; and

d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the sole
purpose of determining the surname to be chosen by the children Jerard Patrick and Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1, Series of 2004 are
DISAPPROVED and hereby declared NULL and VOID.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

Emelita Basilio Gan Vs. Republic of the Philippines; G.R. No. 207147; September 14, 2016
RESOLUTION

REYES, J.:
This is a petition for review on certiorari[1] under Rule 45 of the Rules of Court seeking to annul and set aside
the Decision[2] dated April 26, 2013 issued by the Court of Appeals (CA) in CA-G.R. CV No. 98112.

Facts

Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock to Pia Gan, her father who is
a Chinese national, and Consolacion Basilio, her mother who is a Filipino citizen.[3] The petitioner’s birth
certificate,[4] which was registered in the Office of the Local Civil Registrar (LCR) of Libmanan, Camarines
Sur, indicates that her full name is Emelita Basilio.
On June 29, 2010, the petitioner filed a Petition[5] for correction of name with the Regional Trial Court (RTC)
of Libmanan, Camarines Sur. The petitioner sought to change the full name indicated in her birth certificate from
“Emelita Basilio” to “Emelita Basilio Gan.” She claimed that she had been using the name “Emelita Basilio
Gan” in her school records from elementary until college, employment records, marriage contract, and other
government records.[6]

Ruling of the RTC

On July 15, 2010, the RTC issued an Order, which noted that the petition filed sought not merely a correction
of entry in the birth certificate, but a change of name. Accordingly, the RTC ordered the petitioner to make the
necessary amendment to her petition to conform to the requirements of Rule 103 of the Rules of Court.[7]
The petitioner filed with the RTC an Amended Petition[8] dated August 3, 2010 for change of name. The amended
petition contained substantially the same allegations as in the petition for correction of entry in the birth
certificate. On August 10, 2010, the RTC set the initial hearing of the petition in a newspaper of general
circulation. The Office of the Solicitor General (OSG), as counsel of the Republic of the Philippines
(respondent), filed its notice of appearance. The OSG authorized the Office of the Provincial Prosecutor of
Libmanan, Camarines Sur to appear and assist the OSG in the proceedings before the RTC.[9]

On July 19, 2011, after due proceedings; the RTC of Libmanan, Camarines Sur, Branch 29, issued an
Order[10] granting the petition for change of name. The RTC, thus, directed the LCR of Libmanan, Camarines
Sur to change the petitioner’s name in her birth certificate from “Emelita Basilio” to “Emelita Basilio Gan.” The
RTC opined that, from the evidence presented, the said petition was filed solely to put into order the records of
the petitioner and that changing her name in her birth certificate into Emelita Basilio Gan would avoid confusion
in her personal records.[11]

The respondent sought a reconsideration[12] of the RTC Order dated July 19, 2011, alleging that the petitioner,
who is an illegitimate child, failed to adduce evidence that she was duly recognized by her father, which would
have allowed her to use the surname of her father.[13] On October 17, 2011, the RTC issued an Order[14] denying
the respondent’s motion for reconsideration.

Ruling of the CA

On appeal, the CA, in its Decision[15] dated April 26, 2013, reversed and set aside the RTC Orders dated July
19, 2011 and October 17, 2011. The CA opined that pursuant to Article 176 of the Family Code, as amended
by Republic Act No. 9255,[16] the petitioner, as an illegitimate child, may only use the surname of her mother;
she may only use the surname of her father if their filiation has been expressly recognized by her father.[17] The
CA pointed out that the petitioner has not adduced any evidence showing that her father had recognized her as
his illegitimate child and, thus, she may not use the surname of her father.[18]
In this petition for review, the petitioner maintains that the RTC correctly granted her petition since she only
sought to have her name indicated in her birth certificate changed to avoid confusion as regards to her personal
records.[19] She insists that her failure to present evidence that her father recognized her as his illegitimate child
is immaterial; a change of name is reasonable and warranted, if it is necessary to avoid confusion.[20]
 Ruling of the Court

The petition is denied.

A change of name is a privilege and not a matter of right; a proper and reasonable cause must exist before a
person may be authorized to change his name.[21] “In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound discretion of the court. x x x What is involved is not
a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and
propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its
grant and with the sole prerogative for making such determination being lodged in the courts.”[22]

After a judicious review of the records of this case, the Court agrees with the CA that the reason cited by the
petitioner in support of her petition for change of name, i.e. that she has been using the name “Emelita Basilio
Gan” in all of her records, is not a sufficient or proper justification to allow her petition. When the petitioner was
born in 1956, prior to the enactment and effectivity of the Family Code, the pertinent provisions of the Civil
Code then regarding the petitioner’s use of surname provide:

Article 366. A natural child acknowledged by both parents shall principally use the surname of the father. If
recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent.

Article 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother.

In her amended petition for change of name, the petitioner merely stated that she was born out of wedlock;[23] she
did not state whether her parents, at the time of her birth, were not disqualified by any impediment to marry each
other, which would make her a natural child pursuant to Article 269 of the Civil Code. If, at the time of the
petitioner’s·birth, either of her parents had an impediment to marry the other, she may only bear the surname of
her mother pursuant to Article 368 of the Civil Code. Otherwise, she may use the surname of her father provided
that she was acknowledged by her father.

However, the petitioner failed to adduce any evidence that would show that she indeed was duly acknowledged
by his father. The petitioner’s evidence consisted only of her birth certificate signed by her mother, school
records, employment records, marriage contract, certificate of baptism, and other government records. Thus,
assuming that she is a natural child pursuant to Article 269 of the Civil Code, she could still not insist on using
her father’s surname. It was, thus, a blatant error on the part of the RTC to have allowed the petitioner to change
her name from “Emelita Basilio” to “Emelita Basilio Gan.”

The petitioner’s reliance on the cases of Alfon v. Republic of the Philippines,[24]Republic of the Philippines v.
Coseteng-Magpayo,[25] and Republic of the Philippines v. Lim[26] to support her position is misplaced.

In Alfon, the name of the petitioner therein which appeared in her birth certificate was Maria Estrella Veronica
Primitiva Duterte; she was a legitimate child of her father and mother. She filed a petition for change of name,
seeking that she be allowed to use the surname “Alfon,” her mother’s surname, instead of “Duterte.” The trial
court denied the petition, ratiocinating that under Article 364 of the Civil Code, legitimate children shall
principally use the surname of the father. The Court allowed the petitioner therein to use the surname of her
mother since Article 364 of the Civil Code used the word “principally” and not “exclusively” and, hence, there
is no legal obstacle if a legitimate child should choose to use the mother’s surname to which he or she is legally
entitled.[27]
In contrast, Articles 366 and 368 of the Civil Code do not give to an illegitimate child or a natural child not
acknowledged by the father the option to use the surname of the father. Thus, the petitioner cannot insist that
she is allowed to use the surname of her father.

In Coseteng-Magpayo, the issue was the proper procedure to be followed when the change sought to be effected
in the birth certificate affects the civil status of the respondent therein from legitimate to illegitimate. The
respondent therein claimed that his parents were never legally married; he filed a petition to change his name
from “Julian Edward Emerson Coseteng Magpayo,” the name appearing in his birth certificate, to “Julian
Edward Emerson Marquez-Lim Coseteng.” The notice setting the petition for hearing was published and, since
there was no opposition thereto, the trial court; issued an order of general default and eventually granted the
petition of the respondent therein by, inter alia, deleting the entry on the date and place of marriage of his parents
and correcting his surname from “Magpayo” to “Coseteng.”[28] The Court reversed the trial court’s decision since
the proper remedy would have been to file a petition under Rule 108 of the Rules of Court. The Court ruled that
the change sought by the respondent therein involves his civil status as a legitimate child; it may only be given
due course through an adversarial proceedings under Rule 108 of the Rules of Court. The Court’s pronouncement
in Coseteng-Magpayo finds no application in this case.

Finally, Lim likewise finds no application in this case. In Lim, the petition that was filed was for correction of
entries under Rule 108 of the Rules of Court; the petition sought, among others, is the correction of the surname
of the respondent therein from “Yo” to “Yu.” Further, the respondent therein, although an illegitimate child, had
long been using the surname of her father. It bears stressing that the birth certificate of the respondent therein
indicated that her surname was the same as her father albeit misspelled. Thus, a correction of entry in her birth
certificate is appropriate.[29]

Here, the petitioner filed a petition for change of name under Rule 103 and not a petition for correction of entries
under Rule 108. Unlike in Lim, herein petitioner’s birth certificate indicated that she bears the surname of her
mother and not of her father.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED.

SO ORDERED.

Carpio,* Velasco, Jr., (Chairperson), Bersamin,** and Perez, JJ., concur.

Republic of the Philippines Vs. Lorena Omapas Sali; G.R. No. 206023; April 3, 2017
DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to annul and set aside
the February 11, 2013 Decision[1] of the Court of Appeals (CA) in CA-G.R. CEB CV No. 03442, which affirmed
in toto the February 23, 2010 Decision of the Regional Trial Court (RTC), Branch 14, Baybay City, Leyte,
granting the Petition for Correction of Entry under Rule 108 of the Rules filed by respondent Lorena Omapas
Sali (Sali).
The CA narrated the undisputed factual antecedents.

Lorena Omapas Sali filed a Verified Petition, dated November 26, 2008, for Correction of Entry under Rule 108
of the Rules of Court before the RTC with the following material averments:

1. Petitioner is a Filipino, of legal age, single and a resident [of] 941 D. Veloso St.[,] Baybay, Leyte;

2. The respondent is located in Baybay City, Leyte and within the jurisdiction of this Honorable Court where it
can be served with summons and other processes of this Honorable Court;

3. All parties herein have the capacity to sue and be sued;

4. Petitioner is the daughter of Spouses Vedasto A. Omapas and Almarina A. Albay who was born on April 24,
1968 in Baybay, Leyte. A copy of the Baptismal Certificate issued by the Parish of the Sacred Heart, Sta. Mesa,
Manila is hereunto attached as Annex “A”;

5. Unfortunately, in recording the facts of her birth, the personnel of the Local Civil Registrar of Baybay, Leyte[,]
thru inadvertence and mistake[,] erroneously entered in the records the following: Firstly, the first name of the
petitioner as “DOROTHY” instead of “LORENA” and Secondly, the date of birth of the petitioner as “June 24,
1968” instead of “April 24, 1968.” A copy of the Certificate of Live Birth of Dorothy A. Omapas issued by the
National Statistics Office (NSO) and Certification from the Local Civil Registrar of Baybay, Leyte are hereunto
attached as Annex “B” and Annex “C” respectively.

6. The petitioner has been using the name “Lorena A. Omapas[“] and her date of birth as “April 24, 1968” for
as long as she (sic) since she could remember and is known to the community in general as such;

7. To sustain petitioner’s claim that the entries in her Certificate of Live Birth pertaining to her first name and
date of birth should be corrected so that it will now read as “LORENA A. OMAPAS” and “April 24, 1968”
respectively, attached hereto are: the Certificate of Marriage of Morsalyn [D.] Sali and Lorena A. Omapas, and
a photocopy of the Postal Identity Card of the petitioner as Annex “D” and Annex “E” respectively; [and]

8. This petition is intended neither for the petitioner to escape criminal and/or civil liability, nor affect the
hereditary succession of any person whomsoever but solely for the purpose of setting the records of herein
petitioner straight.

[Sali] then prayed for the issuance of an order correcting her first name from “Dorothy” to “Lorena” and the date
of her birth from “June 24, 1968” to [“]April 24, 1968.”

After [Sali] proved her compliance with the jurisdictional requirements, reception of evidence followed. The
Clerk of Court was then appointed as a commissioner to receive the evidence in support of the petition.
Subsequently, she rendered a Report relative thereto.

On February 23, 2010, the trial court issued the assailed Decision in favor of [Sali], the dispositive portion of
which reads:

WHEREFORE, this Court, hereby resolves to GRANT this petition for correction of the erroneous entries in the
Birth Certificate of Lorena A. Omapas-Sali, specifically her first name from “DOROTHY” to “LORENA” and
her date of birth from “JUNE 24, 1968” to “APRIL 24, 1968”, and ordering the Local Civil Registrar of Baybay
City, Leyte, and the National Statistics Office to effect the foregoing correction in the birth record of Lorena A.
Omapas-Sali, upon finality of this decision, and upon payment of the proper legal fees relative thereto.

Furnish copy of this decision to the Office of the Solicitor General, the Local Civil Registrar of Baybay City,
Leyte, the Assistant Provincial Prosecutor, the petitioner and her counsel.

SO ORDERED.[2]
On March 24, 2010, the Republic, through the Office of the Solicitor General (OSG), appealed the RTC Decision
for lack of jurisdiction on the part of the court a quo because the title of the petition and the order setting the
petition for hearing did not contain Sali’s aliases.

The CA denied the appeal, ruling that: (1) the records are bereft of any indication that Sali is known by a name
other than “Lorena,” hence, it would be absurd to compel her to indicate any other alias that she does not have;
(2) Sali not only complied with the mandatory requirements for an appropriate adversarial proceeding under
Rule 108 of the Rules but also gave the Republic an opportunity to timely contest the purported defective
petition; and (3) the change in the first name of Sali will certainly avoid further confusion as to her identity and
there is no showing that it was sought for a fraudulent purpose or that it would prejudice public interest.

Now before Us, the grounds of the petition are as follows:

I.

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW WHEN IT APPLIED RULE 108 INSTEAD
OF RULE 103, THEREBY DISPENSING WITH THE REQUIREMENT OF STATING THE
RESPONDENT’S ALIASES IN THE TITLE OF THE PETITION.

II.

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN NOT HOLDING THAT THE
RESPONDENT FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.[3]
The Republic argues that although Sali’s petition is entitled: “IN THE MATTER OF THE PETITION FOR
CORRECTION OF ENTRY IN THE CERTIFICATE OF LIVE BIRTH OF DOROTHY A. OMAPAS,” it is
actually a petition for a change of name. The first name being sought to be changed does not involve the
correction of a simple clerical, typographical or innocuous error such as a patently misspelled name, but a
substantial change in Sali’s first name. This considering, the applicable rule is Rule 103, which requires that the
applicant’s names and aliases must be stated in the title of the petition and the order setting it for hearing, and
that the petition can be granted only on specific grounds provided by law. Further, assuming that a petition for
correction of entries under Rule 108 is the appropriate remedy, the petition should not have been granted for
failure to exhaust administrative remedies provided for under Republic Act (R.A.) No. 9048.

The petition is partially granted.

Sali’s petition is not for a change of name as contemplated under Rule 103 of the Rules but for correction of
entries under Rule 108. What she seeks is the correction of clerical errors which were committed in the recording
of her name and birth date. This Court has held that not all alterations allowed in one’s name are confined under
Rule 103 and that corrections for clerical errors may be set right under Rule 108.[4] The evidence[5] presented
by Sali show that, since birth, she has been using the name “Lorena.” Thus, it is apparent that she never had any
intention to change her name. What she seeks is simply the removal of the clerical fault or error in her first name,
and to set aright the same to conform to the name she grew up with.[6]
Nevertheless, at the time Sali’s petition was filed, R.A. No. 9048 was already in effect.[7] Section 1 of the law
states:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. –
No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be corrected or changed by the concerned
city or municipal civil registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations. (Emphasis ours)
The petition for change of first name may be allowed, among other grounds, if the new first name has been
habitually and continuously used by the petitioner and he or she has been publicly known by that first name in
the community.[8] The local city or municipal civil registrar or consul general has the primary jurisdiction to
entertain the petition. It is only when such petition is denied that a petitioner may either appeal to the civil
registrar general or file the appropriate petition with the proper court.[9] We stressed in Silverio v. Republic of
the Philippines:[10]
RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change
of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore,
jurisdiction over applications for change of first name is now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage
of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently
denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in nature, not judicial.[11]
Recently, the Court again said in Onde v. Office of the Local Civil Registrar of Las Piñas City:[12]
In Silverio v. Republic, we held that under R.A. No. 9048, jurisdiction over applications for change of first name
is now primarily lodged with administrative officers. The intent and effect of said law is to exclude the change
of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first
filed and subsequently denied. The remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial. In Republic v. Cagandahan, we said that under R.A. No. 9048, the
correction of clerical or typographical errors can now be made through administrative proceedings and without
the need for a judicial order. The law removed from the ambit of Rule 108 of the Rules of Court the correction
of clerical or typographical errors. Thus petitioner can avail of this administrative remedy for the correction of
his and his mother’s first name.[13]
In this case, the petition, insofar as it prayed for the change of Sali’s first name, was not within the RTC’s primary
jurisdiction. It was improper because the remedy should have been administrative, i.e., filing of the petition with
the local civil registrar concerned. For failure to exhaust administrative remedies, the RTC should have dismissed
the petition to correct Sali’s first name.

On the other hand, anent Sali’s petition to correct her birth date from “June 24, 1968” to “April 24, 1968,” R.A.
No. 9048 is inapplicable. It was only on August 15, 2012 that R.A. No. 10172 was signed into law amending
R.A. No. 9048.[14] As modified, Section 1 now includes the day and month in the date of birth and sex of a
person, thus:
Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No
entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical
errors and change of first name or nickname, the day and month in the date of birth or sex of a person where it
is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected
or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions
of this Act and its implementing rules and regulations. (Emphasis ours)
Considering that Sali filed her petition in 2008, Rule 108[15] is the appropriate remedy in seeking to correct her
date of birth in the civil registry. Under the Rules, the following must be observed:
Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would be affected thereby shall be made parties to the
proceeding.
Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
The Republic did not question the petition to correct Sali’s birth date from “June 24, 1968” to “April 24, 1968.”
In fact, it did not contest the CA ruling that the requirements for an appropriate adversarial proceeding were
satisfactorily complied with. The appellate court found:
xxxx

Here, [Sail] filed with the court a quo a verified petition for the correction of her first name from “Dorothy” to
“Lorena” as well as the date of her birth from “June 24, 1968” to “April 24, 1968.” In the petition, she aptly
impleaded the Civil Registrar of Baybay City, Leyte as respondent. Thereafter, the trial court issued an Order
fixing the time and place for the hearing of the petition. The Order for hearing was then published once a week
for three consecutive weeks in a newspaper of general circulation in the province to notify the persons having or
claiming any interest therein. Moreover, said Order was posted in four public and conspicuous places within the
locality. Subsequently, the Civil Registrar, Solicitor General and Assistant Provincial Prosecutor were furnished
copies of the Petition and Order to give them the opportunity to file their respective oppositions thereto. x x
x.[16]

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The February 11, 2013
Decision of the Court of Appeals in CA-G.R. CEB CV No. 03442, which affirmed in toto the February 23, 2010
Decision of the Regional Trial Court, Branch 14, Baybay City, Leyte, is AFFIRMED WITH
MODIFICATION. The Petition for Correction of Entry in the Certificate of Live Birth of Dorothy A. Omapas
with respect to her first name is DISMISSED WITHOUT PREJUDICE to its filing with the local civil
registrar concerned.

SO ORDERED.

Carpio, (Chairperson), Mendoza, Leonen, and Martires, JJ., concur.