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246702 -

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G.R. No. 246702, April 28, 2021,

♦ Decision, Delos Santos, [J]
♦ Separate Concurring Opinion, Leonen, [J]

[ G.R. No. 246702, April 28, 2021 ]

JAN VICTOR CARBONELL Y BALLESTEROS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

DECISION

DELOS SANTOS, J.:

This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the Decision2 dated August 28,
2018 and the Resolution3 dated April 4, 2019 of the Court of Appeals (CA) in CA-G.R. CR No. 40239, finding Jan
Victor Carbonell  y  Ballesteros (petitioner) guilty beyond reasonable doubt of Acts of Lasciviousness defined and
penalized under Section 5(b), Article III of Republic Act (R.A.) No. 7610.4  The challenged rulings modified the
Decision5  dated June 15, 2017 of the Regional Trial Court (RTC) of Baguio City, Branch 4, which convicted
petitioner of Acts of Lasciviousness under Article 336 of the Revised Penal Code (RPC).

The Facts

Petitioner was charged with the crime of Acts of Lasciviousness defined under Article 336 of the RPC under the
following Information, which reads:

That on or about the 28th  day of November, 2015, at XXX, in the City of Baguio, Philippines and within the
jurisdiction of this Honorable Court, the above-named Accused, with intent to arouse or gratify his own sexual
desire, with lewd design, by means of force, threat and/or intimidation, did then and there wilfully, unlawfully and
feloniously commit lascivious conduct on the person of Private Complainant "AAA" a fifteen (15) year old minor by
mashing her breasts, against her will and consent, to her damage and prejudice, in violation of the above-cited
provision of law.

CONTRARY TO Article 336 of the Revised Penal Code.6

The facts of the case, as summarized by the CA, are as follows:

CCC, AAA's mother, held a birthday party at their house in the evening of November 28, 2015. Accused-appellant,
who was then the boyfriend of AAA's older sister, BBB, was one of the attendants. AAA stayed in her room the entire
night. During the festivities, AAA was surprised when accused-appellant entered her room and locked the door.
Accused-appellant confided in her that he might have impregnated her sister. Upon hearing this, AAA gave accused-
appellant some contraceptive pills and asked him to give to her sister. Accused-appellant then asked AAA to remove
her shirt otherwise he would tell her friends that she has contraceptive pills. Worrying that this could ruin her
reputation, AAA complied. Accused-appellant then mashed her breast, which prompted AAA to push him out of her
room. Almost a month after the incident, AAA learned that accused-appellant was spreading false rumors about her.
AAA then decided to tell her mother about what accused-appellant did to her. CCC then assisted AAA in filing a
criminal [complaint] against accused-appellant.

When placed on the stand, accused-appellant denied the accusation against him. He explained that he met AAA in
an event sometime in 2015. AAA introduced him to her sister, BBB, who later became his girlfriend. On November
28, 2015, he was invited to a birthday celebration of AAA's mother at their house. Accused-appellant claimed that he
stayed in BBB's room with their other friends, where they had a movie marathon until the following morning.
Accused-appellant then denie[d] that he had a moment alone with AAA while he was there. Accused-appellant
claimed that CCC filed the criminal complaint against him because BBB started to live with him and she refused to
return to their house when CCC ordered her to do so.7

The RTC Ruling

In its Judgment8 dated June 15, 2017, the RTC convicted petitioner of Acts of Lasciviousness under Article 336 of
the RPC, viz.:
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WHEREFORE, in view of all the foregoing, accused JAN VICTOR CARBONELL Y BALLESTEROS is
found GUILTY beyond reasonable doubt for the offense of Acts of Lasciviousness, as defined and
penalized under Article 336 of the Revised Penal Code. He is sentenced to suffer the indeterminate
sentence of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision
correctional as maximum.

In consonance with the earlier cited jurisprudence, the accused is directed to pay private complainant
[AAA] civil indemnity in the amount of P20,000.00 and P15,000.00 as moral damages or a total of
P35,000.00. An interest at the rate of six percent (6%) per annum shall be imposed on all the damages
awarded to [AAA] to be computed from the date of the finality of the judgment until fully paid. The
payment of the docket fees as to the damages is considered a first lien on the judgment.

SO ORDERED.9

The RTC gave full weight and credit to AAA's testimony, finding it to be very clear, definite and straightforward.
Conversely, the RTC rejected petitioner's uncorroborated defense of denial.10

Aggrieved, petitioner appealed to the CA challenging AAA's credibility. Petitioner referred to the purported
inconsistencies in AAA's declaration in her sworn affidavit, that petitioner touched her breast several times,  vis-a-
vis her testimony in court, that petitioner touched her left breast only with his right hand. Petitioner added that it was
impossible for him to have sexually molested AAA, claiming that there were many guests at the time of the incident,
who could have easily noticed any unusual event. Lastly, questioning AAA's behavior during the alleged sexual
molestation, petitioner argued that it is unfathomable that AAA did not run or shout for help.11

The CA Ruling

In the challenged Decision12 dated August 28, 2018, the CA modified the RTC Judgment, and convicted petitioner of
Acts of Lasciviousness defined under Section 5(b), Article III of R.A. No. 7610, otherwise known as the Special
Protection of Children Against Abuse, Exploitation and Discrimination Act. The fallo of the Decision reads:

WHEREFORE, premises considered, the appeal is  DENIED. The assailed Judgment dated June 15,
2017 of the Regional Trial Court of Baguio City, Branch 4 in Criminal Case No. 38798-R is AFFIRMED
with MODIFICATIONS.

Accused, JAN VICTOR CARBONELL y BALLESTEROS is hereby found GUILTY beyond reasonable

doubt of committing an act of lasciviousness as defined under Section 5(b), Article III of Republic Act
No. 7610 in relation to Section 2(h) of its Implementing Rules and Regulations. As such, he is
hereby  sentenced to suffer the penalty of imprisonment  for ten (10) 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 is ordered to pay AAA the following amounts: (1) P20,000.00 as civil indemnity; (2)
P15,000.00 as moral damages; (3) P15,000.00 as exemplary damages; and (4) P15,000.00 as fine
with an interest rate of 6% per annum to be imposed on all damages awarded counted from the date of
finality of this judgment.

SO ORDERED.13

As did the RTC, the CA gave paramount weight to the testimony of AAA, finding the same to be straightforward and
consistent. It debunked petitioner's assertions which purportedly tainted her testimony.14

Underscoring that AAA was 15 years old, or a child defined under R.A. No. 7610, at the time of the incident, the CA
modified the RTC Judgment, as regards the designation of the offense, as well as the imposable penalty and civil
liability. The CA held that the Information against petitioner sufficiently averred the acts defined under Section 5(b),
Article III of R.A. No. 7610, and, thus, convicted him of Acts of Lasciviousness under the said provision.15

Petitioner moved for reconsideration, but to no avail.

Hence, this Petition raising the following issues for resolution:

I.

WHETHER THE [CA] GRAVELY ERRED IN AFFIRMING THE CONVICTION OF THE PETITIONER
NOTWITHSTANDING THE INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.

II.

WHETHER THE (CA] GRAVELY ERRED IN AFFIRMING THE CONVICTION OF THE PETITIONER
DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

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III.

WHETHER THE (CA] GRAVELY ERRED IN DISREGARDING THE PETITIONER'S DEFENSE OF

DENIAL.16

The Court's Ruling

The Petition is devoid of merit.

Preliminarily, it bears underscoring the time-honored rule that the assessment of the trial court with regard to the
credibility of witnesses deserves the utmost respect, if not finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the demeanor of the declarants in the course of their
testimonies.17 Indeed, the factual findings of the trial court, its calibration of the testimonies of the witnesses, and its
conclusions based on its findings are generally binding and conclusive upon the Court, especially so when affirmed
by the appellate court.18  With more reason shall this principle apply in testimonies given by child witnesses,
considering that their youth and immaturity are generally badges of truth and sincerity.19 While there are recognized
exceptions to the rule, the Court finds no substantial reason to overturn the congruent conclusions of the RTC and
the CA on the matter of AAA's credibility.

The Court affirms the CA Decision with modification, only insofar as the proper designation of the offense is
concerned, that is, petitioner is guilty of "Lascivious Conduct" under Section 5(b), Article III of R.A. No. 7610.

Article 336 of the RPC defines and penalizes "acts of lasciviousness," thus:

Article 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.

Deduced to its elements, the crime presupposes the concurrence of the following: (1) that the offender commits
any  act of lasciviousness  or lewdness; (2) that it is done under any of the following circumstances: (a) through
force,  threat, or intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; (c) by
means of fraudulent machination or grave abuse of authority; and (d) when the offended party is under 12 years of
age or is demented, even though none of the circumstances mentioned above be present; and (3) that the offended
party is another person of either sex.20

Meanwhile, R.A. No. 7610 finds application when the victims of abuse, exploitation or discrimination are children or
those "person[s] below 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." Section 5(b) thereof provides:

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:

xxxx

(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 victims (sic) 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[.] (Underscoring supplied)

For a conviction under Section 5(b), Article III of R.A. No. 7610, there must be confluence of the following requisites,
thus:

(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; and,

(3) The child, whether male or female, is below 18 years of age.21 (Emphases supplied)

"Lascivious conduct," is defined as "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

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gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of
a person."22

As correctly found by the CA, all elements are present in this case.

First, the prosecution sufficiently established the elements of lascivious conduct of petitioner and the minority of
AAA. Records show that AAA positively testified that on November 28, 2015, petitioner intimidated AAA, and
grabbed and mashed her breast to satisfy his lustful desire. At the time of such incident, AAA was a child below 18
years of age, having been born on August 9, 2000, as shown by her Certificate of Live Birth.

Second, the element requiring that the victim was subject to other sexual abuse was likewise established.

By "other sexual abuse" is meant to cover not only a child who is abused for profit, but also in cases where a child
was engaged in a lascivious conduct through the coercion, influence or intimidation by an adult.23

"Influence" is "use of power or trust in any way that deprives a person of free will and substitutes another's
objective."24 On the other hand, "coercion is the improper use of power to compel another to submit to the wishes of
one who wields it."25 "Coercion and influence" as appearing under R.A. No. 7610 is broad enough to cover "force
and intimidation" as one of the circumstances under Article 336.26  Intimidation must be viewed in the light of the
victim's perception and judgment at the time of the commission of the crime,27 taking into consideration the age, size
and strength of the parties.28 In People v. Leonardo,29 the Court held:

Section 5 of [R.A.] No. 7610 does not merely cover a situation of a child being abused for profit, but also one in
which a child is coerced to engage in lascivious conduct. To repeat, intimidation need not necessarily be irresistible.
It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the
offended party. This is especially true in the case of young, innocent and immature girls who could not be expected
to act with equanimity of disposition and with nerves of steel. Young girls cannot be expected to act like adults under
the same circumstances or to have the courage and intelligence to disregard the threat. (Underscoring supplied)

In this case, petitioner, who was senior to the child victim by four years, manipulated and subjected AAA to his
lascivious conduct, under the threat of ruining her reputation. Petitioner intimidated AAA by threatening her that he
would tell others that she was taking birth control pills. As succinctly put by the RTC, it was enough that fear was
produced in the mind of the 15-year-old victim from the threat of petitioner, whom she may have identified as her
"kuya," he being the boyfriend of her older sister.

It bears emphasis, as well, that consent is immaterial in cases involving violation of Section 5(b), Article III of R.A.
No. 7610.30 The law being malum prohibitum, the mere act of committing lascivious conduct with a child subjected to
sexual abuse already constitute the offense.31

While the Information against petitioner made no particular mention of Section 5(b), Article III of R.A. No. 7610, this
omission is not fatal to petitioner's right to be informed of the nature and cause of accusation against him. What
controls are the actual facts recited in the Information as constituting the offense charged, not its caption or
designation.32 In Flordeliz v. People,33 the Court allowed the imposition of a penalty provided for in R.A. No. 7610
despite the absence in the Information of any explicit reference to the said statute, viz.:

We are aware that the Information specifically charged petitioner with Acts of Lasciviousness under the RPC,
without stating therein that it was in relation to R.A. No. 7610. 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 therein clearly recite the facts constituting the crime charged. The
character of the crime is not determined by the caption or preamble of the information nor by the specification of the
provision of law alleged to have been violated, but  by the recital of the ultimate facts and circumstances in the
complaint or information.

In the instant case, the body of the Information contains an averment of the acts alleged to have been committed by
petitioner and unmistakably describes acts punishable under Section 5(b), Article III of R.A. No. 7610.34 (Emphasis
supplied)

In this case, the subject Information sufficiently recited the ultimate facts as would classify AAA as a child subjected
to sexual abuse under the coercion, intimidation or influence of petitioner, within the purview of Section 5(b), Article
III of R.A. No. 7610. Thus, petitioner may be validly convicted of the offense of Lascivious Conduct under Section
⌊aшΡhi⌊

5(b), Article III of R.A. No. 7610.

Penalty and Award of Damages

The imposable penalty for Lascivious Conduct under Section 5(b), Article III of R.A. No. 7610 is  reclusion
temporal in its medium period to reclusion perpetua. Applying the Indeterminate Sentence Law, the maximum term
of the sentence shall be taken from the medium period, or from 17 years, four (4) months and one (1) day to 20
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years, owing to the absence of any mitigating or aggravating circumstance. On the other hand, the minimum term of
the indeterminate penalty shall be taken within the range of the penalty next lower in degree, which is  prision
mayor in its medium period to reclusion temporal in its minimum period, or from eight (8) years and one (1) day to
14 years and eight (8) months.

Accordingly, the CA correctly imposed the indeterminate penalty of imprisonment ranging from a period 10 years
and one (1) day of prision mayor, as minimum, to 17 years, four (4) months, and one (1) day of reclusion temporal,
as maximum.

As to petitioner's civil liabilities, the CA correctly applied the prevailing jurisprudence35 in awarding AAA the following
amounts: (a) P20,000.00 as civil indemnity, (b) P15,000.00 as moral damages, (c) P15,000.00 as exemplary
damages, and (d) P15,000.00 as fine, all of which shall earn interest at the rate of 6% per annum from the date of
finality of this judgment until full payment.

WHEREFORE, the Petition is  DENIED. Petitioner Jan Victor Carbonell y Ballesteros is found  GUILTY  beyond
reasonable doubt of the offense of Lascivious Conduct under Section 5(b), Article III of R.A. No. 7610. Accordingly,
he is  SENTENCED  to suffer the indeterminate prison term of 10 years and one (1) day of  prision mayor, as
minimum, to 17 years, four (4) months, and one (1) day of  reclusion temporal,  as maximum, and
further  ORDERED  to pay AAA the amounts of P20,000.00 as civil indemnity, P15,000.00 as moral damages,
P15,000.00 as exemplary damages, and P15,000.00 as fine. All monetary awards shall earn interest at the legal
rate of 6% per annum from the date of finality of this Decision until full payment.

SO ORDERED.

Hernando, Inting, and Zalameda,* JJ., concur.

Leonen (Chairperson), J., see separate concurring opinion.

Footnotes

*  Designated as additional member in lieu of Associate Justice Jhosep Y. Lopez per Raffle dated March 3,
2021.
1
 Rollo, pp. 12-31.
2
  Penned by Associate Justice Jhosep Y. Lopez (now a Member of the Court), with Associate Justices
Rosmari D. Carandang and Amy C. Lazaro-Javier, (now both Members of the Court), concurring; id. at 36-49.
3
 Penned by Associate Justice Jhosep Y. Lopez, with Presiding Justice Romeo F. Barza and Associate Justice
Franchito N. Diamante, concurring; id. at 51-52.
4
  An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and
Discrimination, Providing Penalties for its Violation and for Other Purposes.
5
 Penned by Presiding Judge Mia Joy C. Oallares-Cawed; rollo, pp. 68-79.
6
 Id. at 37.
7
 Id. at 38.
8
 Supra note 5.
9
 Rollo, p. 79.
10
 Id. at 77-78.
11
 Id. at 44-45.
12
 Supra note 2.
13
 Rollo, p. 48.
14
 Id. at 43-45.
15
 Id. at 47-48.

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16
 Id. at 19-20.
17
 People v. Chua, 444 Phil. 757, 766-767 (2003).
18
 People v. Iroy, 628 Phil. 145, 152 (2010).
19
 Ricalde v. People, 751 Phil. 793, 805 (2015).
20
 Quimvel v. People, 808 Phil. 889, 914 (2017).
21
  Roallos v. People, 723 Phil. 655, 667-668 (2013);  Caballo v. People, 710 Phil. 792, 801 (2013),
citing Olivarez v. Court of Appeals, 503 Phil. 421, 431 (2005).
22
 Implementing Rules and Regulations of R.A. No. 7610, Sec. 2(h).
23
 Olivarez v. Court of Appeals, supra note 21, at 432.
24
 See People v. Caoili, 815 Phil. 839, 889 (2017).
25
 Id.
26
 See Quimvel v. People, supra note 20, at 919.
27
 People v. Ardon, 407 Phil. 104, 121 (2001).
28
 Id.
29
 638 Phil. 161, 188 (2010).
30
 Caballo v. People, supra note 21, at 806.
31
 Id. at 806-807.
32
 Espino v. People, 713 Phil. 377, 385-386 (2013), citing People v. Manalili, 355 Phil. 652, 688 (1998).
33
 628 Phil. 124 (2010).
34
 Id. at 142.
35
 See Quimvel v. People, supra note 20.

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