People vs. Losano

A father who has carnal knowledge of his own daughter under eighteen years of age, the victim being only six at commission, is guilty of qualified rape punishable by death under Article 335 as amended by Republic Act No. 7659, the victim's credible testimony alone being sufficient and the precise date alleged not being a material element.

Jovito Losano y Nacis is the father of Rowena Losano, the third of four children with his wife Rosita Losano. Veronica Losano is Jovito's mother and Rowena's grandmother. Rosita was working in Kuwait during the period relevant to the charge, leaving the children in the family's household in Barangay Alipangpang, Pozorrubio, Pangasinan. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, imposes death when rape is committed against a victim under eighteen years of age by a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or common-law spouse of the parent.

Rowena Losano was born on April 17, 1990, the third of four children of accused Jovito Losano y Nacis and Rosita Losano. At the time of the alleged rape she was six years old and residing with family in Barangay Alipangpang, Pozorrubio, Pangasinan, while her mother was in Kuwait. According to the prosecution, while staying at their house, Rowena's father removed her dress and panties, fondled her breasts, removed his own pants and brief, went on top of her, and inserted his penis into her vagina, causing pain. She testified he told her not to tell anybody otherwise he would kill her, and that he inserted his penis everyday, at nighttime after carrying her outside the room on the second floor where she was sleeping with her sister Maricel and grandmother Veronica.

On September 25, 1995, while in Baguio City, Rowena told her grandmother Veronica that her father had mashed her breasts and removed her panties, and upon further questioning added that he had inserted his penis inside her. To verify the account, Veronica and her daughter Priscilla Fetalino brought Rowena to the Baguio City office of the NBI, where Dr. Ronald Bandonill conducted a medical examination on October 3, 1995. The certificate stated no extra-genital physical injuries and preserved physical virginity, but noted congestion and inflammation at the vestibular mucosa and hymenal area with intense pain and tenderness indicating probability of attempted penetration by a hard erect male organ which was not successful, since completed penetration would produce massive genital injury.

For his part, accused denied raping his daughter, professing love for his children and claiming frame-up driven by grudges. He testified that his sister Priscilla resented his refusal to sell her at very low price a karaoke, Walkman and several watches he brought from Saudi Arabia, having instead sold them to a third person for higher price, and that his mother and sister resented his refusal to sign a document selling their land and claimed the monthly money his wife sent him. He admitted Rowena was six years of age, that his wife had gone to Kuwait in 1993, and that his other daughter Maricel, age eleven, had filed a criminal case for acts of lasciviousness against him. During proceedings his counsel adopted Dr. Bandonill's medical certificate as Exhibit I to prove absence of spermatozoa.

The charge was filed on March 13, 1996 alleging rape sometime in May 1995. At trial Rowena positively identified her father as her assailant and described penetration and pain, while Veronica admitted no personal knowledge beyond what Rowena told her. The trial court found Rowena's testimony possessed all the semblance of truth and rejected denial and ill-motive claims as implausible for a mother, aunt, and seven-year-old child to fabricate at the cost of a death sentence.

• Variance Between Charge and Proof: Petitioner argued that conviction for an offense not charged was imposed because the information alleged rape sometime in May 1995 while the medico-legal report and prosecution testimony indicated rape in August or September 1995, with congestion and inflammation unlikely to persist four months, so any later rape proved was a different offense requiring reversal.
• Credibility and Leading Questions: Petitioner maintained that Rowena's testimony was coached through leading questions and inconsistent, juxtaposing her claim that Veronica awoke when she was carried out against Veronica's testimony of being in Baguio, and arguing proximity of the grandmother made rape and unheard cries of pain implausible.
• Judicial Bias and Medico-Legal Stipulation: Petitioner argued that the trial judge deprived him of fair trial and presumption of innocence by peremptorily ordering defense counsel to stipulate to the existence of the medico-legal report as negative, denying cross-examination of the doctor, then using congestion, inflammation, pain and tenderness to deduce slight penetration and convict.
• Propensity from Pending Case: Petitioner argued that reliance on his admission of a pending acts of lasciviousness case filed by his eleven-year-old daughter to find propensity to sexually abuse children under Section 34, Rule 130 violated the constitutional presumption of innocence, as pendency proves only filing, not guilt or craving.

• Variance in Date: Whether conviction must be reversed where the information alleged rape sometime in May 1995 but proof pointed to a later date in August or September 1995, constituting an offense not charged.
• Credibility and Leading Questions: Whether full weight and credence was properly given to the seven-year-old complainant's testimony elicited through leading questions despite alleged inconsistencies on the grandmother's presence and opportunity.
• Judicial Bias and Stipulation: Whether the trial court manifested bias and denied fair trial and presumption of innocence by leading defense counsel to admit the medico-legal report and later using it to convict.
• Propensity Evidence: Whether the trial court properly found propensity to sexually abuse children from the pendency of an acts of lasciviousness case filed by another daughter and used it to convict.
• Penalty and Civil Liability: Whether death under Article 335 as amended by Republic Act No. 7659 was properly imposed for paternal rape of a six-year-old and what civil indemnity and moral damages are due.

• Variance in Date: No. Date is not a material element of rape, proof need not correspond to the allegation if within limitations and before action, and objection to form was waived by failure to move to quash before plea.
• Credibility and Leading Questions: Yes. Leading questions to a seven-year-old victim are allowed, her credible sole testimony sustains conviction, and alleged inconsistencies on minor matters do not impair identification of the father as assailant.
• Judicial Bias and Stipulation: No. No peremptory order or bias was shown, stipulation on existence was within counsel's authority and later adopted as defense exhibit, and conviction rested on the victim's testimony, not the report alone.
• Propensity Evidence: Yes, error was committed. Pendency of the acts of lasciviousness charge proves only filing, not propensity or guilt, and reliance thereon disregarded the presumption of innocence, though the error did not obliterate proof of rape.
• Penalty and Civil Liability: Yes. Death was properly imposed where the victim was six and the offender her parent, with civil indemnity increased to P75,000.00 and P50,000.00 moral damages awarded.

• Variance in Date: Under Section 11, Rule 110, precise time need not be stated except when time is a material ingredient, and as early as 1903 proof was held sufficient if showing commission within limitations and before or after the stated time and before action commenced. Because occurrence, not time, is material in rape, later proof did not establish a different offense, and under Sections 1, 3(d) and 8, Rule 117, failure to move to quash a formal defect in time before plea waived objection. Where the accused without objection accepts the issue and defends on the very transaction, variance first raised on appeal is untenable and does not show prejudice to preparation.
• Credibility and Leading Questions: Under Section 10, Rule 132, leading questions are proper for a child of tender years who is naturally meek, shy, and reluctant to recount traumatic rape in public, Rowena being only seven at testimony. The sole testimony of the victim suffices if credible, credibility being for the trial court which observed deportment, and its finding of semblance of truth was undisturbed. Alleged contradictions on whether Veronica was present or awoke concerned only minor matters that strengthen rather than weaken credibility, did not disprove commission, and nearby presence does not preclude rape.
• Judicial Bias and Stipulation: The exchange showed the court addressing the fiscal and characterizing the finding as negative, while defense counsel voluntarily admitted existence of Exhibit A and later adopted the same report as its own Exhibit I to prove absence of spermatozoa. Questions of what evidence to stipulate to, theory, and proof are within counsel's authority and bind the client even if improvident. In any event, conviction did not rest on that piece alone but on positive identification by the victim, and denial, inherently weak and easily fabricated, could not prevail nor could implausible ill-motive claims about bargain karaoke, Walkman, watches, land sale, and remittances explain a child sending her father to Death Row.
• Propensity Evidence: Section 34, Rule 130 bars similar-acts evidence to prove doing at another time, except to prove specific intent, plan, system, and the like, but admission of facing a charge proves only that a case was filed and pending, not propensity to prey on daughters. Drawing propensity equated pendency with guilt and ignored the constitutional presumption of innocence, so the trial court's reasoning on this point was rejected. The error was isolated, however, leaving intact the victim's credible account establishing guilt beyond reasonable doubt.
• Penalty and Civil Liability: Article 335 as amended by Republic Act No. 7659 mandates death if the victim is under eighteen years of age and the offender is a parent, plainly covering a six-year-old raped by her father, with execution pursuant to Republic Act No. 8177. Recent jurisprudence increased civil indemnity to P75,000.00 where death is authorized, and P50,000.00 moral damages was found proper without need of separate proof.

• Time Not Material in Rape — The date of commission is not an essential element of rape; what is material is occurrence. Proof of a date different from that alleged, if within the statute of limitations and before commencement of action, sustains conviction under Section 11, Rule 110. Applied to reject reversal despite May 1995 allegation versus August-September 1995 proof.
• Waiver of Formal Defects by Failure to Move to Quash — Defects in form, including erroneous time under Sections 6 to 12, Rule 110, must be raised by motion to quash before plea under Sections 1, 3(d) and 8, Rule 117, otherwise deemed waived except for no offense charged, lack of jurisdiction, extinction, and jeopardy. Applied because accused pleaded not guilty without challenging the date and defended on the merits.
• Leading Questions to Child Witness — Leading questions, generally prohibited, are allowed for a child of tender years who requires patient probing to recount trauma. Applied to sustain Rowena's testimony elicited at age seven through prosecutorial prompting.
• Sole Testimony of Rape Victim and Trial Court Credibility — Conviction in rape rests almost entirely on the complainant's credibility, as usually only participants can testify; the trial court's assessment, having observed deportment, commands highest respect. A minor's assertion of rape in effect shows commission. Applied to credit Rowena despite minor inconsistencies and to hold nearby presence does not negate rape, for lust is no respecter of time and place.
• Denial vs. Positive Identification — Denial is inherently weak and easily fabricated, becoming weaker against positive identification by the victim. Applied to reject accused's bare denial and frame-up theory involving karaoke, Walkman, watches, land, and remittances.
• Similar Acts and Presumption of Innocence — Under Section 34, Rule 130, pendency of a similar charge proves only filing, not propensity, plan, or guilt; equating pendency with propensity violates the presumption of innocence. Applied to strike the trial court's propensity finding based on the pending acts of lasciviousness case filed by Maricel.
• Qualified Rape by Parent and Civil Awards — Under Article 335 as amended by Republic Act No. 7659, death is imposed when the victim is under eighteen and the offender is a parent. Where death is authorized, civil indemnity is P75,000.00 and moral damages of P50,000.00 is proper. Applied to affirm death by lethal injection under Republic Act No. 8177 and modify awards accordingly.

• "When a woman, especially if she is a minor, says that she has been raped she says in effect all that is necessary to show that rape was committed." — States the sufficiency rule for victim testimony that underpinned affirmance despite absence of eyewitnesses and preserved virginity.
• "lust being no respecter of time and place." — Explains rejection of the impossibility argument based on the grandmother's nearby presence during nighttime rape.
• "[c]hildren are naturally meek and shy. They need patient and careful probing to encourage them to talk in public about a traumatic experience." — Justifies allowance of leading questions to the seven-year-old complainant in recounting rape.
• "Dura lex, sed lex", interpreted as: "The law is harsh (sic), but that (sic) is the law." — Captures the trial court's rationale quoted in affirming mandatory death for qualified paternal rape, underscoring mandatory application despite harshness.

• U.S. vs. Smith, 3 Phil 20 (1903) — Followed as early authority that complaint must allege time and place but proof need not correspond unless material, if within limitations and before action.
• U.S. vs. Bungaoil, 34 Phil 835 (1916) — Followed to hold variance in date without timely objection and prejudice is untenable on appeal and does not imply two crimes where accused defended on the merits.
• People vs. Vargas, 257 SCRA 603 (1996) — Followed to allow probing and leading questions to coax truth from reluctant child victims of traumatic rape.
• People vs. Bolatete, G.R. No. 127570, February 25, 1999 — Followed for sufficiency of credible sole victim testimony and that a minor's claim establishes rape.
• People vs. Villaluna, G.R. No. 117666, February 23, 1999 — Cited for the principle that rape conviction or acquittal depends almost entirely on complainant credibility.
• People vs. Correa, 285 SCRA 679 (1998) — Cited for deference to trial court findings on witness credibility and deportment.
• People vs. Perez, G.R. No. 122764, September 24, 1998 — Followed to hold nearby presence of people does not guarantee rape cannot occur.
• People vs. Cabiles, 284 SCRA 199 (1998) — Followed for the weakness of denial against positive identification.
• Province of Bulacan vs. CA, G.R. No. 126232, November 27, 1998 — Followed to hold counsel's stipulation on procedural and evidentiary matters binds the client.
• People vs. Bation, G.R. No. 123160, March 25, 1999; People vs. Robles, G.R. No. 124300, March 25, 1999 — Followed to increase civil indemnity to P75,000.00 where death is authorized.
• People vs. Ilao, G.R. No. 129529, September 29, 1998 — Followed to award P50,000.00 moral damages without separate proof.
• People vs. Villamor, G.R. No. 124441, October 7, 1998; People vs. Ramos, G.R. No. 129439, September 25, 1998 — Cited that date is not an essential element and occurrence controls in rape.
• Matilde, Jr. vs. Jabson, 68 SCRA 456 (1975) — Cited by appellant for the principle against conviction for an offense not charged, distinguished as inapplicable where only date varied.

• Article 335, Revised Penal Code as amended by Republic Act No. 7659 — Imposes death when rape victim is under eighteen and offender is parent, ascendant, step-parent, guardian, relative within third civil degree, or common-law spouse of parent; applied to impose death for paternal rape of six-year-old.
• Republic Act No. 8177 (Lethal Injection Law) — Provides mode of execution of death penalty; cited in trial court sentence affirmed on review.
• Section 11, Rule 110, Rules of Court — Precise time need not be stated unless material; applied to sustain conviction despite variance between May 1995 allegation and later proof.
• Sections 1, 3(d) and 8, Rule 117, Rules of Court — Require motion to quash formal defects including time before plea, otherwise waived; applied to deem date objection waived.
• Section 10, Rule 132, Rules of Court — Allows leading questions to child or unwilling witness; applied to uphold questioning of seven-year-old victim.
• Section 34, Rule 130, Rules of Court — Similar acts inadmissible to prove conduct at another time except for intent, plan, system, and the like; applied to reject propensity inference from pending charge.
• Article 47, Revised Penal Code and Section 1(e), Rule 122, Rules of Court — Provide automatic review of death sentences; invoked as basis for Supreme Court review.
• Article 83, Revised Penal Code as amended by Section 25, Republic Act No. 7659 — Requires forwarding of affirmed death decision and records to the President for possible clemency; ordered upon finality.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Four members maintained that Republic Act No. 7659 insofar as it prescribes death is unconstitutional but submitted to the majority ruling upholding constitutionality.