PEÑA, TABITHA ERLINDA MA. PAS A.

CASE DIGEST

PEOPLE vs. LUCAS

G.R. No. 108172-73. May 25, 1994.
Davide, Jr., J.

FACTS:

1. Ofelia Austria and the accused, Conrado Lucas, have been living together as husband and
wife since 1969—They had several children, including Chanda, the complainant.
2. On November 26, 1983 at around 2 to 3 o'clock in the morning, while her mother Ofelia
was away, Chanda, at the time only 9 years of age, was awakened by her father Conrado
who was then removing her panty and shorts. At the time, Conrado, who was already
naked, went on top of Chanda and placed his sexual organ in her vagina—Threatened to
get killed, Chanda did not resist the sexual assault. (This statement was corroborated by
the testimony of Chanda’s sister, Cynthia, who declared that their father Conrado initially
intended to sexually abuse her but because she resisted, Conrado raped Chanda instead.)
3. The said incident was followed by several others until the last assault on February 12,
1991 when Chanda was already 17 years old. According to Chanda, her father Conrado,
prior to sexually assaulting her that night, first moved her brothers and sisters to another
place. When the assault was over, Conrado held his balisong and once again threatened to
kill her.
4. A year later, on February 16, 1992, Chanda alongside her mother Ofelia and her uncle
Leonardo Austria reported the incident which was followed by a medical examination
conducted by Dr. Emmanuel Aranas. Based on the medical results, Chanda's genitalia
disclosed healed lacerations, but as to when the lacerations were inflicted or sustained
cannot be determined; what was certain was Chanda has had several sexual experiences
and was no longer a virgin.
5. Three days after said report, Chanda together with her mother Ofelia filed two separate
sworn criminal complaints: one for rape and another for attempted rape.
6. Months later, the trial court rendered a decision, finding Conrado guilty beyond
reasonable doubt of two crimes of rape—Conrado was, as a result, sentenced to suffer the
penalty of reclusion perpetua.
7. Conrado thereafter appealed said decision, contending that he could not be validly
convicted of consummated rape under a complaint for attempted rape only; he cited the
rule that when the offense proved is more serious than that charged, the accused can only
be convicted of the offense charged.

ISSUES:

1. Whether or not Conrad’s contention is correct

2. Whether or not the penalty of reclusion perpetua is divisible
RULING:

1. Yes. Conrad’s contention that he could not be validly convicted of consummated rape
under a complaint for attempted rape only is correct.

Section 4, Rule 120 of the Rules of Court provides that “[w]hen there is variance
between the offense charged in the complaint or information, and that proved or
established by the evidence, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved
included in that which is charged, or of the offense charged included in that which is
proved.”

In the case, the offense charged in the criminal case concerning attempted rape is
necessarily included in the offense that was proved (i.e. that of consummated rape). As
such, Conrado should be convicted of attempted rape only. The penalty for attempted
rape is prision mayor, which is two degrees lower than that provided by law for rape.

It shall be noted, however, that Conrado is entitled to the benefits of the

Indeterminate Sentence Law, and for attempted rape he may be sentenced to a penalty
whose minimum should be within the range of prision correccional and whose maximum
should be within the range of prision mayor, taking into account the modifying
circumstances. The alternative circumstance of relationship provided for in Article 15 of
the Revised Penal Code should be appreciated against him considering that the offended
party, Chanda, is his descendant—In crimes against chastity, such as rape, relationship is
aggravating.

2. No. Reclusion perpetua is an indivisible—and not a divisible—penalty.

Prior to R.A. No. 7659, the presence of modifying circumstances would not affect
the penalty of reclusion perpetua prescribed for the crime of rape because such a penalty
was then indivisible and under Article 63 of the Revised Penal Code, when the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have attended the commission of the
deed. However, pursuant to Section 21 of R.A. No. 7659, which amended Article 27 of
the Revised Penal Code, reclusion perpetua has now a defined duration, i.e., from twenty
(20) years and one (1) day to forty (40) years. There is, nevertheless, no corresponding
amendment to Article 76 of the same Code for the purpose of converting reclusion
perpetua into a divisible penalty with three specific periods—minimum, medium, and
maximum—It may thus be said that although the law has now fixed the duration of
reclusion perpetua, it did not make explicit its intention to convert it into a divisible
penalty.