VOL.

533, SEPTEMBER 21, 2007 643

Malto vs. People
*
G.R. No. 164733. September 21, 2007.

MICHAEL JOHN Z. MALTO, petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

Criminal Procedure; Constitutional Law; Sufficiency of

Complaint or Information; A complaint or information is sufficient if
it states the name of the accused, the designation of the offense 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.·In all criminal prosecutions, the accused is entitled to
be informed of the nature and cause of the accusation against him.

_______________

* FIRST DIVISION.

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644 SUPREME COURT REPORTS ANNOTATED

Malto vs. People

Pursuant thereto, the complaint or information against him should

be sufficient in form and substance. A complaint or information is
sufficient if it states the name of the accused; the designation of the
offense 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.
 Same; Same; Same; 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.·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. The acts or omissions 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.

Same; Same; Same; The failure however to designate the offense

by statute, or to mention the specific provision penalizing the act, or
an erroneous specification of the law violated does not vitiate the
information if the facts alleged clearly recite the facts constituting
the crime charged.·The designation in the information of the
specific statute violated is imperative to avoid surprise on the
accused and to afford him the opportunity to prepare his defense
accordingly. However, the failure to designate the offense by statute,
or to mention the specific provision penalizing the act, or an
erroneous specification of the law violated does not vitiate the
information if the facts alleged clearly recite the facts constituting
the crime charged. What controls is not the title of the information
or the designation of the offense but the actual facts recited in the
information. In other words, it is the recital of facts of the
commission of the offense, not the nomenclature of the offense, that
determines the crime being charged in the information.

645

VOL. 533, SEPTEMBER 21, 2007 645

Malto vs. People

Criminal Law; Republic Act 7610; Elements of Paragraph (a)

and (b) of RA 7610.·The elements of paragraph (a) are: 1. the
accused engages in, promotes, facilitates or induces child
prostitution; 2. the act is done through, but not limited to, the
following means: a. acting as a procurer of a child prostitute; b.
inducing a person to be a client of a child prostitute by means of
written or oral advertisements or other similar means; c. taking
advantage of influence or relationship to procure a child as a
prostitute; d. threatening or using violence towards a child to
engage him as a prostitute or, e. giving monetary consideration,
goods or other pecuniary benefit to a child with intent to engage
such child in prostitution; 3. the child is exploited or intended to be
exploited in prostitution and, 4. the child, whether male or female,
is below 18 years of age. On the other hand, the elements of
paragraph (b) are: 1. the accused commits the act of sexual
intercourse or lascivious conduct; 2. the act is performed with a
child exploited in prostitution or subjected to other sexual abuse
and, 3. the child, whether male or female, is below 18 years of age.

Same; Same; Under paragraph (a), the child is abused

primarily for profit.·Paragraph (a) essentially punishes acts
pertaining to or connected with child prostitution. It contemplates
sexual abuse of a child exploited in prostitution. In other words,
under paragraph (a), the child is abused primarily for profit.

Same; Same; Paragraph (b) covers not only a situation where a

child is abused for profit but also one in which a child, through
coercion, intimidation or influence, engages in sexual intercourse or
lascivious conduct.·Paragraph (b) punishes sexual intercourse or
lascivious conduct not only with a child exploited in prostitution but
also with a child subjected to other sexual abuse. It covers not only
a situation where a child is abused for profit but also one in which a
child, through coercion, intimidation or influence, engages in sexual
intercourse or lascivious conduct.

Same; Same; Petitioner can be held liable for violation of

Section 5(b), Article III of RA 7610 despite a finding that he did not
commit rape.·Petitioner was charged and convicted for violation of
Section 5(b), Article III of RA 7610, not rape. The offense for which
he was convicted is punished by a special law while rape is a felony
under the Revised Penal Code. They have different elements. The
two are separate and distinct crimes. Thus, petitioner can be held

646

646 SUPREME COURT REPORTS ANNOTATED

Malto vs. People

liable for violation of Section 5(b), Article III of RA 7610 despite a
finding that he did not commit rape.

Same; Same; Sweetheart Theory; For purposes of sexual

intercourse and lascivious conduct in child abuse cases under RA
7610, the sweetheart defense is unacceptable.·The sweetheart
theory applies in acts of lasciviousness and rape, felonies committed
against or without the consent of the victim. It operates on the
theory that the sexual act was consensual. It requires proof that the
accused and the victim were lovers and that she consented to the
sexual relations. For purposes of sexual intercourse and lascivious
conduct in child abuse cases under RA 7610, the sweetheart defense
is unacceptable. A child exploited in prostitution or subjected to
other sexual abuse cannot validly give consent to sexual intercourse
with another person.

Same; Same; Same; Unlike rape, consent is immaterial in cases

involving violation of Section 5, Article III of RA 7610.·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.

Same; Same; Penalties; Indeterminate Sentence Law;

Notwithstanding that RA 7610 is a special law, petitioner may enjoy
the benefits of the Indeterminate Sentence Law.·The penalty
prescribed for violation of the provisions of Section 5, Article III of
RA 7610 is reclusion temporal in its medium period to reclusion
perpetua. In the absence of any mitigating or aggravating
circumstance, the proper imposable penalty is reclusion temporal in
its maximum period, the medium of the penalty prescribed by the
law. Notwithstanding that RA 7610 is a special law, petitioner may
enjoy the benefits of the Indeterminate Sentence Law. Since the
penalty provided in RA 7610 is taken from the range of penalties in
the Revised Penal Code, it is covered by the first clause of Section 1
of the Indeterminate Sentence Law. Thus, he is entitled to a
maximum term which should be within the range of the proper
imposable penalty of reclusion temporal in its maximum period
(ranging from 17 years, 4 months and 1 day to 20 years) and a
minimum term to be taken within the range of the penalty next
lower to that prescribed by the law: prision mayor in its

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 VOL. 533, SEPTEMBER 21, 2007 647

Malto vs. People

medium period to reclusion temporal in its minimum period

(ranging from 8 years and 1 day to 14 years and 8 months).

APPEAL from a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Ruby Ruiz-Bruno for petitioner.
The Solicitor General for respondent.

CORONA, J.:

Whereas, mankind owes to the child the best it has to give.

(Final preambular clause of the Declaration of the Rights of the
Child)
1 2
This is a petition for review of the decision dated July 30,
2004 of the Court of Appeals (CA) in CA-G.R.
3
CR No. 25925
affirming with modification the decision of Branch 109 of
the Regional Trial Court of Pasay City in Criminal Case
No. 000691 which found petitioner Michael John Z. Malto
guilty for violation
4
of paragraph 3, Section 5(a), Article III
of RA 7610, as amended.
Petitioner was originally charged in an information
which read:

„The undersigned Assistant City Prosecutor accuses MICHAEL

JOHN Z. MALTO of VIOLATION OF SECTION 5(b), AR

_______________

1 Under Rule 45 of the Rules of Court.

2 Penned by Associate Justice Magdangal M. De Leon and concurred
in by Associate Justices Edgardo P. Cruz and Mariano C. Del Castillo of
the Special Tenth Division of the Court of Appeals. Rollo, pp. 33-45.
3 Dated March 7, 2001. Penned by Judge Lilia C. Lopez. Id., pp. 57-89.
4 Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act. It is also known as the „Anti-Child Abuse Law.‰

648

648 SUPREME COURT REPORTS ANNOTATED

 Malto vs. People

TICLE III, REPUBLIC ACT 7610, AS AMENDED, committed as

follows: That on or about and sometime during the month of
November 1997 up to 1998, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, Michael John. Z. Malto, a professor, did then
and there willfully, unlawfully and feloniously induce and/or seduce
his student at Assumption College, complainant, AAA, a minor of
17 years old, to indulge in sexual intercourse for several times with
him as in fact said accused had carnal knowledge.
5
Contrary to law.‰

This was subsequently amended as follows:

„The undersigned Assistant City Prosecutor accuses MICHAEL

JOHN Z. MALTO of VIOLATION OF SECTION 5(a), ARTICLE III,
REPUBLIC ACT 7610, AS AMENDED, committed as follows:
That on or about and sometime during the month of November
1997 up to 1998, in Pasay City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, Michael John Z. Malto, a professor, did then and there
willfully, unlawfully and feloniously take advantage and exert
influence, relationship and moral ascendancy and induce and/or
seduce his student at Assumption College, complainant, AAA, a
minor of 17 years old, to indulge in sexual intercourse and
lascivious conduct for several times with him as in fact said accused
has carnal knowledge.
6
Contrary to law.‰

Petitioner did not make a plea when arraigned; hence, the

trial court entered for him a plea of „not guilty.‰ After the
mandatory pre-trial, trial on the merits proceeded.
The prosecution established the following:
At the time of the
7
incident, private complainant AAA
was 17 years old. She was a college student at the
Assumption

_______________

5 Trial court records, vol. I, p. 2.

6 Id., p. 96.
7 Her birth certificate (Exhibit „H‰) showed that she was born on
December 3, 1979. Id., p. 229.

649
 VOL. 533, SEPTEMBER 21, 2007 649
Malto vs. People

College in San Lorenzo Village, Makati City. Petitioner,

then 28, was her professor in her Philosophy II class in the
first semester of the school year 1997 to 1998.
On July 18, 1997, AAA was having lunch with her
friends when petitioner joined their group. He told them to
address him simply as „Mike.‰ He handed them his
organizer and asked them to list down their names and
contact numbers.
On October 3, 1997, while AAA and her friends were
discussing the movie Kama Sutra, petitioner butted in and
bragged that it was nothing compared to his collection of
xxxrated films. To the shock of AAAÊs group, he lectured on
and demonstrated sexual acts he had already experienced.
He then invited the group to view his collection.
On October 10, 1997, petitioner reiterated his invitation
to AAA and her friends to watch his collection of
pornographic films. Afraid of offending petitioner, AAA and
two of her friends went with him. They rode in his car and
he brought them to the Anito Lodge on Harrison St. in
Pasay City. They checked in at a „calesa room.‰ Petitioner
was disappointed when he found out there was neither a
video cassette player (on which he could play his video
tapes) nor an x-rated show on the closed-circuit television.
He suggested that they just cuddle up together. AAA and
her friends ignored him but he pulled each of them towards
him to lie with him in bed. They resisted until he relented.
AAA and her friends regretted having accepted
petitionerÊs invitation. For fear of embarrassment in case
their classmates got wind of what happened, they agreed to
keep things a secret. Meanwhile, petitioner apologized for
his actuations.
Thereafter, petitioner started to show AAA amorous 8
attention. He called her on the phone and paged her
romantic messages at least thrice a day. When semestral
break came,

_______________

8 Before cellular phones and text messaging came in vogue, the status
symbol were pagers/beepers used for paging/beeping messages.

650
650 SUPREME COURT REPORTS ANNOTATED
Malto vs. People

his calls and messages became more frequent. Their

conversation always started innocently but he had a way of
veering the subject to sex. Young, naive and coming from a
broken family, AAA was soon overwhelmed by petitionerÊs
persistence and slowly got attracted to him. He was the
first person to court her. Soon, they had a „mutual
understanding‰ and became sweethearts.
When AAA secured her class card in Philosophy II at the
start of the second semester, petitioner told her that he
gave her a final grade of „3.‰ She protested, stating that her
midterm grade was „1.2.‰ He gave her a grade of „1.5‰ when
she promised not to disclose his intimate messages to her
to anyone. He also cautioned her not to tell anyone about
their affair as it could jeopardize his job.
On November 19, 1997, at around 11:00 a.m., AAA
agreed to have lunch with petitioner outside the premises
of the college. Since she was not feeling well at that time,
he asked her to lie down in the backseat of his car. She 9was
surprised when he brought her to Queensland Lodge on
Harrison St. in Pasay City. Once inside the motel room, he
kissed her at the back and neck, touched her breasts and
placed his hand inside her blouse. She resisted his
advances but he was too strong for her. He stopped only
when she got angry at him.
On November 26, 1997, petitioner asked AAA to come
with him so that they could talk in private. He again
brought her to Queensland Lodge. As soon as they were
inside the room, he took off his shirt, lay down in bed and
told her, „halika na, dito na tayo mag-usap.‰ She refused
but he dragged her towards the bed, kissed her lips, neck
and breasts and unsnapped her brassiere. She struggled to
stop him but he overpowered her. He went on top of her,
lowered her pants and touched her private part. He tried to
penetrate her but she pushed him away forcefully and she
sat up in bed. He hugged her tightly saying, „Sige na, AAA,
pumayag ka na, I wonÊt

_______________

9 Queensland Motel in some parts of the records.

651
 VOL. 533, SEPTEMBER 21, 2007 651
Malto vs. People

hurt you.‰ She refused and said, „Mike, ayoko.‰ He angrily

stood up saying, „Fine, hindi na tayo mag-uusap. DonÊt
come to the faculty room anymore. You know I need this
and if you will not give in or give it to me, let us end this.‰
She replied, „Mike, hindi pa ako ready and it was you who
said it will be after my debut‰ on December 3, 1997. He
insisted that there was no difference between having sex
then and after her debut. He told her, „kung hindi ko
makukuha ngayon, tapusin na natin ngayon.‰ Pressured
and afraid of his threat to end their relationship, she
hesitantly replied „Fine.‰ On hearing this, he quickly
undressed while commenting „ibibigay mo rin pala,
pinahirapan mo pa ako‰ and laughed. They had sexual
intercourse.
In July 1999, AAA ended her relationship with
petitioner. She learned that he was either intimately
involved with or was sexually harassing his students in
Assumption College and in other colleges where he taught.
In particular, he was dismissed from the De La Salle
University-Aguinaldo for having sexual relations with a
student and sexually harassing three other students. His
employment was also terminated by Assumption College
for sexually harassing two of his students. It was then that
AAA realized that she was actually abused by petitioner.
Depressed and distressed, she confided all that happened
between her and petitioner to her mother, BBB.
On learning what her daughter underwent in the hands
of petitioner, BBB filed an administrative complaint in
Assumption College against him. She also lodged a
complaint in the Office of the City Prosecutor of Pasay City
which led to the filing of Criminal Case No. 00-0691.
In his defense, petitioner proffered denial and alibi. He
claimed that the alleged incidents on October 3, 1997 and
October 10, 1997 did not happen. He spent October 3, 1997
with his colleagues Joseph Hipolito and AJ Lagaso while he
was busy checking papers and computing grades on
October

652

652 SUPREME COURT REPORTS ANNOTATED

 Malto vs. People

10, 1997. The last time he saw AAA during the first
semester was when she submitted her final paper on
October 18, 1997.
On November 19, 1997, between 10:30 a.m. and 1:00
p.m., he sorted out conflicts of class schedules for the
second semester at the Assumption College. On November
26, 1997, he was at St. ScholasticaÊs College (where he was
also teaching) preparing a faculty concert slated on
December 12, 1997. At lunch time, he attended the
birthday treat of a colleague, Evelyn Bancoro.
On November 29, 1997, he attended AAAÊs 18th birthday
party. That was the last time he saw her.
According to petitioner, AAA became his sweetheart
when she was already 19 years old and after he was
dismissed from Assumption College. On December 27 and
28, 1998, they spent time together, shared their worries,
problems and dreams and kissed each other. On January 3,
1999, he brought her to Queensland Lodge where they had
sexual intercourse for the first time. It was repeated for at
least 20 times from January 1999 until they broke up in
July 1999, some of which were done at either his or her
house when no one was around.
The trial court found the evidence for the prosecution
sufficient to sustain petitionerÊs conviction. On March10
7,
2001, it rendered a decision finding petitioner guilty. The
dispositive portion read:

„In view of the foregoing, the Court finds the accused Michael John
Malto y Zarsadias guilty beyond reasonable doubt for violation of
Article III, Section 5(a)[,] paragraph 3 of RA 7610[,] as amended and
hereby sentences him to reclusion temporal in its medium period or
an imprisonment of seventeen (17) years, four (4) months and one
(1) day to twenty (20) years and to pay civil indemnity in the
amount of Php 75,000.00 and moral and exemplary damages of Php

_______________

10 Supra note 3.

653

VOL. 533, SEPTEMBER 21, 2007 653

Malto vs. People
50,000.00 to minor complainant with subsidiary imprisonment in
11
case of insolvency.‰

Petitioner questioned the trial courtÊs12

decision in the CA. In
a decision dated July 30, 2004, the appellate court
affirmed his conviction even if it found that his acts were
not covered by paragraph (a) but by paragraph (b) of
Section 5, Article III of RA 7610. It further observed that
the trial court failed to fix the minimum term of
indeterminate sentence imposed on him. It also ruled that
the trial court erred in awarding P75,000 civil indemnity in
favor of AAA as it was proper only in a conviction for rape
committed under the circumstances 13
under which the death
penalty was authorized by law. Hence, the CA modified
the decision of the trial court as follows:

„WHEREFORE, the appealed Decision of conviction is

AFFIRMED, with the MODIFICATION that (1) appellant
MICHAEL JOHN MALTO y ZARSADIAS is hereby sentenced to an
indeterminate penalty of 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; and (2) the sum of
14
P75,000.00 as civil indemnity is DELETED.‰

Hence, this petition.

Petitioner contends that the CA erred in sustaining his
conviction although it found that he did not rape AAA. For
him, he should have been acquitted since there was no
rape. He also claims that he and AAA were sweethearts
and their sexual intercourse was consensual.
Petitioner is wrong.

_______________

11 Id.
12 Supra note 2.
13 RA 9346 („An Act Prohibiting the Imposition of Death Penalty‰
enacted on June 24, 2006) subsequently repealed the death penalty.
14 Supra note 2.

654

654 SUPREME COURT REPORTS ANNOTATED

Malto vs. People
THE OFFENSE STATED IN THE INFORMATION
WAS WRONGLY DESIGNATED

In all criminal prosecutions, the accused is entitled to be

informed
15
of the nature and cause of the accusation against
him. Pursuant thereto, the complaint or information
against him should be sufficient in form and substance. A
complaint or information is sufficient if it states the name
of the accused; the designation of the offense 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
16
offense and the place where
the offense was committed.
The complaint or information shall state the designation
of the offense given by the statute, aver the acts or
omissions constituting the offense
17
and specify its qualifying
and aggravating circumstances. If there is no designation
of the offense, reference shall be made to18 the section or
subsection of the statute punishing it. The acts or
omissions 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 19
circumstances and for the court to pronounce judgment.
The designation of the offense in the information against
petitioner was changed from „violation of Section 5(b),
Article III‰ of RA 7610 to „violation of Section 5(a), Article
III‰

_______________

15 Section 1(b), Rule 115, Rules of Court.

16 Section 6, Rule 110, Id.
17 Olivarez v. Court of Appeals, G.R. No. 163866, 29 July 2005, 465
SCRA 465.
18 Section 8, Rule 110, Rules of Court.
19 Section 9, Id.

655

VOL. 533, SEPTEMBER 21, 2007 655

Malto vs. People
thereof. Paragraphs (a) and (b) of Section 5, Article III of
RA 7610 provide:

„Section 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 a 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 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
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; and
xxx xxx x x x (emphasis supplied)

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or

induces child prostitution;

656

656 SUPREME COURT REPORTS ANNOTATED

 Malto vs. People

2. the act is done through, but not limited to, the

following means:

a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute
by means of written or oral advertisements or other
similar means;
c. taking advantage of influence or relationship to
procure a child as a prostitute;
d. threatening or using violence towards a child to
engage him as a prostitute or
e. giving monetary consideration, goods or other
pecuniary benefit to a child with intent to engage
such child in prostitution;

3. the child is exploited or intended to be exploited in

prostitution and
4. the child, whether male or female, is below 18 years
of age.

On the other hand, the elements of paragraph (b) are:

1. the accused commits the act of sexual intercourse or

lascivious conduct;
2. the act is performed with a child exploited in
prostitution or subjected to other sexual abuse and
3. the child, whether male or female, is below 18 years
of age.

Paragraph (a) essentially punishes acts pertaining to or

connected with child prostitution. It contemplates sexual
abuse of a child exploited in prostitution. In other words,
under paragraph (a), the child is abused primarily for
profit.
On the other hand, paragraph (b) punishes sexual
intercourse or lascivious conduct not only with a child
exploited in prostitution but also with a child subjected to
other sexual abuse. It covers not only a situation where a
child is abused

657
 VOL. 533, SEPTEMBER 21, 2007 657
Malto vs. People

for profit but also one in which a child, through coercion,

intimidation or influence,
20
engages in sexual intercourse or
lascivious conduct.
The information against petitioner did not allege
anything pertaining to or connected with child prostitution.
It did not aver that AAA was abused for profit. What it
charged was that petitioner had carnal knowledge or
committed sexual intercourse and lascivious conduct with
AAA; AAA was induced and/or seduced by petitioner who
was her professor to indulge in sexual intercourse and
lascivious conduct and AAA was a 17-year old minor. These
allegations support a charge for violation of paragraph (b),
not paragraph (a), of Section 5, Article III, RA 7610.

THE REAL NATURE OF THE OFFENSE IS

DETERMINED BY FACTS ALLEGED IN THE
INFORMATION,NOT BY THE DESIGNATION

The designation in the information of the specific statute

violated is imperative to avoid surprise on the accused and
to afford him the opportunity to prepare his defense
accordingly.21 However, the failure to designate the offense
by statute,
22
or to mention the specific provision penalizing 23
the act, or an erroneous specification of the law violated
does not vitiate the information if the facts alleged24 clearly
recite the facts constituting the crime charged. What
controls is not the title of the information or the
designation of25
the offense but the actual facts recited in the
information. In other words, it is

_______________

20 People v. Larin, 357 Phil. 987; 297 SCRA 309 (1998).

21 U.S. v. de Dao, 2 Phil. 458 (1903).
22 People v. Gatchalian, 104 Phil. 664 (1958).
23 People v. Arnault, 92 Phil. 252 (1952).
24 Herrera, Oscar M., Remedial Law, volume IV: CRIMINAL
PROCEDURE, Rex Bookstore, 1992 edition, p. 59.
25 People v. Resayaga, G.R. No. L-49536, 30 March 1988, 159 SCRA
426; Santos v. People, G.R. No. 77429, 29 January 1990, 181 SCRA 487.

658
658 SUPREME COURT REPORTS ANNOTATED
Malto vs. People

the recital of facts of the commission of the offense, not the

nomenclature of the offense, that 26
determines the crime
being charged in the information.
The facts stated in the amended information against
petitioner correctly made out a charge for violation of
Section 5(b), Article III, RA 7610. Thus, even if the trial
and appellate courts followed the wrong designation of the
offense, petitioner could be convicted of the offense on the
basis of the facts recited in the information and duly
proven during trial.

PETITIONER VIOLATED SECTION 5(B), ARTICLE

III OF RA 7610, AS AMENDED

The first element of Section 5(b), Article III of RA 7610

pertains to the act or acts committed by the accused. The
second element refers to the state or condition of the
offended party. The third element corresponds to the
minority or age of the offended party.
The first element was present in this case. Petitioner
committed lascivious conduct against and had sexual
intercourse with AAA in the following instances: (1) on
November 19, 1997, when he kissed her at the back and
neck, touched her breasts and placed his hand inside her
blouse to gratify his lust; (2) on November 26, 1997, when,
with lewd designs, he dragged her towards the bed of the
motel room and forcibly kissed her on the lips, neck and
breasts and (3) when he exerted moral influence on her and
pressured her until she surrendered herself to him on
November 26, 1997. His acts were covered by the
definitions of sexual abuse and lascivious conduct under
Section 2(g) and (h) of the Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases
promulgated to implement the provisions of RA 7610,
particularly on child abuse:

_______________

26 People v. Elesterio, G.R. No. 63971, 9 May 1989, 173 SCRA 243.

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Malto vs. People

(g) „Sexual abuse‰ includes 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;
(h) „Lascivious conduct‰ means the 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 public area of a person. (emphasis
supplied)

The second element was likewise present 27

here. The
following pronouncement in People v. Larin is significant:

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. (emphasis supplied)

On November 19, 1997, due to the influence of petitioner,

AAA indulged in lascivious acts with or allowed him to
commit lascivious acts on her. This was repeated on
November 26, 1997 on which date AAA also indulged in
sexual intercourse with petitioner as a result of the latterÊs
influence and moral ascendancy. Thus, she was deemed to
be a „child subjected to other sexual abuse‰ as the concept
is defined in the opening paragraph of Section 5, Article III
of RA 7610 and in Larin.
The third element of the offense was also satisfied.
Section 3 (a), Article I of RA 7610 provides:

SECTION 3. Definition of Terms.·

_______________

27 Supra note 20.

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660 SUPREME COURT REPORTS ANNOTATED
Malto vs. People

(a) „Children‰ refers [to] persons below eighteen (18) years

of age or those over but are unable to fully take care of themselves
or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition; (emphasis supplied)

On November 19, 2007 and November 26, 2007, AAA was a

child as she was below 18 years of age. She was therefore
within the protective mantle of the law.
Since all three elements of the crime were present, the
conviction of petitioner was proper.

VIOLATION OF SECTION 5(B), ARTICLE III OF RA

7610 AND RAPE ARE SEPARATE AND DISTINCT
CRIMES

Petitioner was charged and convicted for violation of

Section 5(b), Article III of RA 7610, not rape. The offense
for which he was convicted is punished by a special 28
law
while rape is a felony under29
the Revised Penal Code. They
have different elements. The two are separate and
distinct crimes. Thus, petitioner can be held liable for
violation of Section 5(b), Article III of RA 7610 despite a
finding that he did not commit rape.

_______________

28 At the time of the commission of the offense, rape was still classified
as a crime against chastity punished under Article 335 of the Revised
Penal Code. It is now a crime against persons defined and penalized
under Article 266-A of the Revised Penal Code.
29 In contrast to the offense punished under Section 5(b), Article III of
RA 7610, the crime of rape has the following elements: (1) the offender is
a man who had carnal knowledge of a woman and (2) such act was
accomplished through force or intimidation; or when the victim is
deprived of reason or otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority; or when the victim is under 12
years of age or is demented. (People v. Padilla, G.R. No. 142899, 31
March 2004, 426 SCRA 648)

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Malto vs. People

CONSENT OF THE CHILD IS IMMATERIAL IN

CRIMINAL CASES INVOLVING VIOLATION OF
SECTION 5, ARTICLE III OF RA 7610

Petitioner claims that AAA welcomed his kisses and

touches and consented to have sexual intercourse with him.
They engaged in these acts out of mutual love and
affection. But may the „sweetheart theory‰ be invoked in
cases of child prostitution and other sexual abuse
prosecuted under Section 5, Article III of RA 7610? No.
The sweetheart theory applies in acts of lasciviousness
and rape, felonies committed against or without the
consent of the victim. It operates on the theory that the
sexual act was consensual. It requires proof that the
accused and the victim30were lovers and that she consented
to the sexual relations.
For purposes of sexual intercourse and lascivious
conduct in child abuse cases under RA 7610, the
sweetheart defense is unacceptable. A child exploited in
prostitution or subjected to other sexual abuse cannot
validly give consent to sexual intercourse with another
person.
The language of the law is clear: it seeks to punish

[t]hose 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.

_______________

30 People v. Bautista, G.R. No. 140278, 03 June 2004, 430 SCRA 469.

662
662 SUPREME COURT REPORTS ANNOTATED
Malto vs. People

A child
31
cannot give consent to a contract under our civil
laws. This is on the rationale that she can easily be the
victim of fraud as she is not capable of fully understanding
or knowing the nature or import of her actions. The State,
as parens patriae, is under the obligation to minimize the
risk of harm to those who, because of their minority,
32
are as
yet unable to take care of themselves33
fully. Those of
tender years deserve its protection.
The harm which results from a childÊs bad decision in a
sexual encounter may be infinitely more damaging to her
than a bad business deal. Thus, the law should protect her

_______________

31 Article 1327, Civil Code. A contract between a child and another

person who is of legal age is voidable at the instance of the child. The
rule is, however, subject to the following exceptions: (a) upon reaching
the age of majority, the contract is ratified by the party who was a child
when he entered into it, (b) the contract was entered into thru a guardian
and approved by a CA competent jurisdiction, (c) it is a contract for
necessities, such as food, but the person legally bound to give them
support should pay therefor and (d) the child misrepresented his age and
pretended to be of majority age and is thus in estoppel.
It should also be noted that under our present criminal laws, the age
of exemption from criminal liability was raised from 9 years old to 15
years old. (RA 9344) Thus, a child 15 years of age or under at the time of
the commission of the offense is exempt from criminal liability. A child
above 15 but below 18 years of age is presumed not to have acted with
discernment and will be criminally liable only upon rebuttal of that
presumption by proof that he acted with discernment. Thus, there is a
presumption of lack of discernment on the part of a child (which
presumption is conclusive if she is 15 years of age and below and
disputable if she is over 15 but below 18 years of age).
32 People v. Baylon, G.R. No. L-35785, 29 May 1974, 57 SCRA 114.
33 Id.

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VOL. 533, SEPTEMBER 21, 2007 663

Malto vs. People
 34
from the harmful 35
consequences of her attempts at adult
sexual behavior. For this reason, a child should not be
deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical
intimacy under a law which seeks to afford her special
protection against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will be
justified, or even unwittingly tempted by the law, to view
her as fair game and vulnerable prey.) In other words, a
child is presumed by law to be incapable of giving36rational
consent to any lascivious act or sexual intercourse.
This must be so if we are to be true to the
constitutionally enshrined State policy to promote the
physical, moral,
37
spiritual, intellectual and social well-being
of the youth. This is consistent with the declared policy of
the State

_______________

34 These harmful consequences include teenage pregnancy, mothering

or fathering an illegitimate child and contracting sexually transmitted
disease(s).
35 The recognition that copulation is an adult activity is reflected in
the way films or shows are classified as rated „R‰ or „R-18.‰ Under the
Guidelines of the Movie and Television Review and Classification Board
(MTRCB), a movie or show classified as „Restricted– 18‰ („R-18‰) may be
viewed only by those who are 18 years old and above. As to its sexual
content, the movie may portray sexual activity. (Section 1(D), Chapter IV,
2004 Guidelines of the MTRCB) Moreover, Section 9 of PD 1986
(Creating the MTRCB) makes it unlawful for (a) any person below 18
years of age to enter, to misrepresent or make use of any false evidence
about his or her age in order to gain admission into a movie house or
theater showing a motion picture classified as „Restricted‰ or „For Adults
Only‰ by the MTRCB and (b) for any employee of a movie house or
theater to sell to, or receive from, another person known to the former to
be below 18 years of age any admission ticket to the exhibition of motion
pictures classified as „Restricted‰ or „For Adults Only.‰
36 People v. Delantar, G.R. No. 169143, 02 February 2007, 514 SCRA
115.
37 Section 13, Article II, Constitution. The Constitution also provides
that the State shall defend „the right of children to assis

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664 SUPREME COURT REPORTS ANNOTATED

 Malto vs. People

„[T]o provide special protection to children from all forms of

abuse, neglect, cruelty, exploitation and discrimination, and
other conditions prejudicial to their development; provide
sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of
38
child abuse, exploitation, and discrimination.‰ (emphasis supplied)

as well as to

„intervene on behalf of the child when the parents, guardian,

teacher or person having care or custody of the child fails or is
unable to protect the child against abuse, exploitation, and
discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or person
39
having care and custody of the same.‰ (emphasis supplied)

This is also in harmony with the foremost consideration of

the childÊs best interests in all actions concerning him or
her.

„The best interest of children shall be the paramount

consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions, courts of
law, administrative authorities, and legislative bodies, consistent
with the principles of First Call for Children as enunciated in the
United Nations Convention on the Rights of the Child. Every
effort shall be exerted to promote the welfare of children
and enhance their opportunities for a useful and happy
40
life.‰ (emphasis supplied)

PETITIONER MAY ENJOY THE BENEFITS OF THE

INDETERMINATE SENTENCE LAW

The penalty prescribed for violation of the provisions of

Section 5, Article III of RA 7610 is reclusion temporal in its

_______________

tance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development.‰(Section 3, Article XV)
38 Section 2, Article I, RA 7610.
39 Id.
 40 Id.

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VOL. 533, SEPTEMBER 21, 2007 665

Malto vs. People

medium period to reclusion perpetua. In the absence of any

mitigating or aggravating circumstance, the proper
imposable penalty is reclusion temporal in its maximum 41
period, the medium of the penalty prescribed by the law.
Notwithstanding that RA 7610 is a special law, petitioner
may 42enjoy the benefits of the Indeterminate Sentence
Law. Since the penalty provided in RA 7610 is taken from
the range of penalties in the Revised Penal Code, it is
covered by the43first clause of Section 1 of the Indeterminate
Sentence Law. Thus, he is

_______________

41 People v. Delantar, supra note 36.

42 People v. Bon, G.R. No. 149199, 28 January 2003, 396 SCRA 506.
43 Cadua v. Court of Appeals, G.R. No. 123123, 19 August 1999, 312
SCRA 703 citing People v. Simon, 234 SCRA 555 (1994). Section 1 of the
Indeterminate Sentence Law provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense

punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and the minimum of which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same. (emphasis supplied) Simon ruled:
It is true that Section 1 of said law, after providing for indeterminate
sentence for an offense under the Revised Penal Code, states that Âif the offense
is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same.Ê We hold that this quoted portion of
the section indubitably refers to an
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666 SUPREME COURT REPORTS ANNOTATED

Malto vs. People

entitled to a maximum term which should be within the

range of the proper imposable penalty of reclusion temporal
in its maximum period (ranging from 17 years, 4 months
and 1 day to 20 years) and a minimum term to be taken
within the range of the penalty next lower to that
prescribed by the law: prision mayor in its medium period
to reclusion temporal in its minimum period (ranging from
8 years and 1 day to 14 years and 8 months).

THE AWARD OF DAMAGES SHOULD BE MODIFIED

The trial court awarded AAA P75,000 as civil indemnity,

P50,000 as moral and exemplary damages. The CA deleted
the award for civil indemnity. It correctly reasoned that the
award was proper only in a conviction for rape committed
under the circumstances under which the death penalty is
authorized by law. Consistent, however, with the objective
of RA 7610 to afford children special protection against
abuse, exploitation and discrimination and with the
principle that every person who contrary to law, willfully or
negligently causes damage
44
to another shall indemnify the
latter for the same, civil indemnity to the child is proper
in a case involving violation of Section 5(b), Article III of
45
RA 7610. Every person criminally liable is civilly liable.
The rule is that, in

_______________

offense under a special law wherein the penalty imposed was not
taken from and is without reference to the Revised Penal Code, as
discussed in the preceding illustrations, such that it may be said that the
Âoffense is punishedÊ under that law. (emphasis supplied)

Cadua applied this rule by analogy and extension.

44 Article 20, Civil Code.
45 Article 100, Revised Penal Code. It provides:

Art. 100. Civil liability of a person guilty of a felony.·Every person criminally

liable for a felony is also civilly liable.
 667

VOL. 533, SEPTEMBER 21, 2007 667

Malto vs. People

crimes and quasi-delicts, the defendant shall be liable for

all damages which are the natural and probable 46
consequences of the act or omission complained of. Thus,
P50,000 civil indemnity ex delicto shall be awarded 47
in cases
of violation of Section 5(b), Article III of RA 7610.
Moreover, the CA erred in affirming the grant of P50,000
as „moral and exemplary damages.‰ The rule is that, in
every case, trial courts must specify the award of each item
of damages48
and make a finding thereon in the body of the
decision. Thus, moral damages and exemplary damages
should be separate items of award.
AAA testified that she was „emotionally devastated‰ and
„lost touch of her inner self‰ as a result of what petitioner
did to her. Because of the mental anxiety and wounded
feelings caused by petitioner to her, she had 49
several
sessions with the dean for student affairs and the
guidance counselor of Assumption College as well as with a
psychiatrist. This was corroborated by her mother and the
dean of student affairs of Assumption College. Thus, she is
entitled to moral damages of P50,000. However, in the
absence of an aggravating circumstance, 50
the grant of
exemplary damages is unwarranted.

_______________

It may be applied in this case pursuant to Article 10 of the Revised Penal Code
which states that the Code shall be supplementary to special laws unless the
latter should specially provide |the contrary. [See People v. Moreno, 60 Phil.
712 (1934).]

46 Article 2202, Civil Code.

47 This rule does not apply where, pursuant to the proviso of Section
5(b), Article III of RA 7610, the accused is prosecuted under Article 266-A
of the Revised Penal Code and a higher civil indemnity is warranted
under the circumstances.
48 People v. Masagnay, G.R. No. 137364, 10 June 2004, 431 SCRA 572.
49 Mrs. Ma. Socorro Villafania.
50 Article 2230, Civil Code. It provides:

668
 668 SUPREME COURT REPORTS ANNOTATED
Malto vs. People

Accordingly, the petition is hereby DENIED. Petitioner

Michael John Z. Malto is hereby found guilty of violating
Section 5(b), Article III of RA 7610, as amended, for which
he is sentenced to 14 years and 8 months of reclusion
temporal as minimum to 20 years of reclusion temporal as
maximum. He is further ordered to pay AAA P50,000 as
civil indemnity and P50,000 for moral damages.
Costs against petitioner.
SO ORDERED.

Puno (C.J., Chairperson), Sandoval-Gutierrez,

Azcuna and Garcia, JJ., concur.

Appeal denied.

Note.·Consistent with the accusedÊs right to be

informed of the nature and cause of the accusation against
him, this circumstance must be specifically pleaded or
alleged with certainty in the information and proven
during the trial. (People vs. Ilao, 418 SCRA 391 [2003])

··o0o··

_______________

ART. 2230. In criminal offenses, exemplary damages as a part of the civil

liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.

669

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