G.R. No.

212448 January 11, 2018

AAA, Petitioner
vs.
BBB, Respondent

DECISION

TIJAM, J.:

May Philippine courts exercise jurisdiction over an offense constituting psychological

violence under Republic Act (R.A.) No. 9262,1 otherwise known as the Anti-Violence
Against Women and their Children Act of 2004, committed through marital infidelity, when
the alleged illicit relationship occurred or is occurring outside the country?

The above question is addressed to this Court in the present Petition 2 for the issuance of
a writ of certiorari under Rule 45 of the Rules of Court, to nullify the Resolutions dated
February 24, 20143 and May 2, 20144 of the Regional Trial Court (RTC) of Pasig City,
Branch 158, in Criminal Case No. 146468. The assailed resolutions granted the motion to
quash the Information5 which charged respondent BBB under Section 5(i) of R.A. No.
9262, committed as follows:

On or about April 19, 2011, in Pasig City, and within the jurisdiction of this Honorable
Court, [BBB], being then legally married to [AAA], caused herein [AAA] mental and
emotional anguish by having an illicit relationship with a certain Lisel Mok as confirmed by
his photograph with his purported paramour Lisel Mok and her children and the e-mailed
letter by his mother mentioning about the said relationship, to the damage and prejudice
of [AAA], in violation of the aforecited law.

Contrary to law.

We briefly recount the antecedents.

Petitioner AAA and BBB were married on August 1, 2006 in Quezon City. Their union
produced two children: CCC was born on March 4, 2007 and DDD on October 1, 2009.6

In May of 2007, BBB started working in Singapore as a chef, where he acquired permanent
resident status in September of 2008. This petition nonetheless indicates his address to
be in Quezon City where his parents reside and where AAA also resided from the time they
were married until March of 2010, when AAA and their children moved back to her parents'
house in Pasig City.7

AAA claimed, albeit not reflected in the Information, that BBB sent little to no financial
support, and only sporadically. This allegedly compelled her to fly extra hours and take on
additional jobs to augment her income as a flight attendant. There were also allegations
of virtual abandonment, mistreatment of her and their son CCC, and physical and sexual
violence. To make matters worse, BBB supposedly started having an affair with a
Singaporean woman named Lisel Mok with whom he allegedly has been living in
Singapore. Things came to a head on April 19, 2011 when AAA and BBB had a violent
altercation at a hotel room in Singapore during her visit with their kids. 8 As can be
gathered from the earlier cited Information, despite the claims of varied forms of abuses,
the investigating prosecutor found sufficient basis to charge BBB with causing AAA mental
and emotional anguish through his alleged marital infidelity.9

The Information having been filed, a warrant of arrest was issued against BBB. AAA was
also able to secure a Hold-Departure Order against BBB who continued to evade the
warrant of arrest. Consequently, the case was archived.10

On November 6, 2013, an Entry of Appearance as Counsel for the Accused With Omnibus
Motion to Revive Case, Quash Information, Lift Hold Departure Order and Warrant of
Arrest11 was filed on behalf of BBB. Granting the motion to quash on the ground of lack of
jurisdiction and thereby dismissing the case, the trial court reasoned:

Here, while the Court maintains its 28 October 2011 ruling that probable cause exists in
this case and that [BBB] is probably guilty of the crime charged, considering, however,
his subsequent clear showing that the acts complained of him had occurred in Singapore,
dismissal of this case is proper since the Court enjoys no jurisdiction over the offense
charged, it having transpired outside the territorial jurisdiction of this Court.

xxxx

The Court is not convinced by .the prosecution's argument that since [AAA] has been
suffering from mental and emotional anguish "wherever she goes'', jurisdiction over the
offense attaches to this Court notwithstanding that the acts resulting in said suffering had
happened outside of the Philippines. To the mind of the Court, with it noting that there is
still as yet no jurisprudence on this score considering that Republic Act 9262 is relatively
a new law, the act itself which had caused a woman to suffer mental or emotional anguish
must have occurred within the territorial limits of the Court for it to enjoy jurisdiction over
the offense. This amply explains the use of the emphatic word "causing" in the provisions
of Section 5(i), above, which denotes the bringing about or into existence of something.
Hence, the mental or emotional anguish suffered by a woman must have been brought
about or into existence by a criminal act which must logically have occurred within the
territorial limits of the Court for jurisdiction over the offense to attach to it. To rule
otherwise would violate or render nugatory one of the basic characteristics of our criminal
laws - territoriality.

In the listing provided in the law itself - "repeated verbal and emotional abuse, and denial
of financial support or custody of minor children of (sic) access to the woman's
child/children" - it becomes clear that there must be an act which causes the "mental or
emotional anguish, public ridicule or humiliation", and it is such act which partakes of a
criminal nature. Here, such act was the alleged maintenance of "an illicit relationship with
a certain Liesel Mok" - which has been conceded to have been committed in Singapore.

Granting, without conceding, that the law presents ambiguities as written, quashal of the
Information must still be ordered following the underlying fundamental principle that all
doubts must be resolved in favor of [BBB]. At best, the Court draws the attention of
Congress to the arguments on jurisdiction spawned by the law.12 (Emphasis in the
original)

Aggrieved by the denial of the prosecution's motion for reconsideration of the dismissal of
the case, AAA sought direct recourse to this Court via the instant petition on a pure
question of law. AAA posits that R.A. No. 9262 is in danger of becoming transmogrified
into a weak, wobbly, and worthless law because with the court a quo's ruling, it is as if
husbands of Filipino women have been given license to enter into extra-marital affairs
without fear of any consequence, as long as they are carried out abroad. In the main, AAA
argues that mental and emotional anguish is an essential element of the offense charged
against BBB, which is experienced by her wherever she goes, and not only in Singapore
where the extra-marital affair takes place; thus, the RTC of Pasig City where she resides
can take cognizance of the case.

In support of her theory, AAA draws attention to Section 7 of R.A. No. 9262, which
provides:

Sec. 7. Venue - The Regional Trial Court designated as a Family Court shall have original
and exclusive jurisdiction over cases of violence against women and their children under
this law. In the absence of such court in the place where the offense was committed, the
case shall be filed in the Regional Trial Court where the crime or any of its elements was
committed at the option of the complainant. (Emphasis ours)

As to the ambiguity in the law hypothetically referred to in the assailed order, AAA directs
us to:
Section 4. Construction.- This Act shall be liberally construed to promote the protection
and safety of victims of violence against women and their children.

In his Comment13 filed on January 20, 2015, BBB contends that the grant of the motion
to quash is in effect an acquittal; that only the civil aspect of a criminal case may be
appealed by the private offended party; and. that this petition should be dismissed
outright for having been brought before this Court by AAA instead of the Office of the
Solicitor General (OSG) as counsel for the People in appellate proceedings. BBB
furthermore avers that the petition was belatedly filed.

We tackle first the threshold issue of whether or not this Court should entertain the
petition.

It must be stated beforehand that BBB is plainly mistaken in asserting that the instant
petition was belatedly filed. The date erroneously perceived by BBB as the date of AAA's
Motion for Extension14 was filed - June 2, 2014 - refers to the date of receipt by the
Division Clerk of Court and not the date when the said motion was lodged before this
Comi. The motion was in fact filed on May 27, 2014, well within the period that AAA had
under the Rules of Court to file the intended petition. Thus, considering the timeliness of
the motion, this Comi in a Resolution15 dated June 9, 2014, granted AAA an additional
period of thirty (30) days or until June 26, 2014 to file a petition for review.

In AAA's motion for extension of time, it was mentioned that she was awaiting the OSG's
response to her Letter16dated May 26, 2014 requesting for representation. Since, the OSG
was unresponsive to her plea for assistance in filing the intended petition, AAA filed the
present petition in her own name before the lapse of the extension given her by this Court
or on June 25, 2014.

We find that under the circumstances, the ends of substantial justice will be better served
by entertaining the petition if only to resolve the question of law lodged before this Court.
In Morillo v. People of the Philippines, et al., 17 where the Court entertained a Rule 45
petition which raised only a question of law filed by the private offended party in the
absence of the OSG's participation, we recalled the instances when the Court permitted
an offended party to file an appeal without the intervention of the OSG. One such instance
is when the interest of substantial justice so requires.18

Morillo, 19 also differentiated between dismissal and acquittal, thus:

Acquittal is always based on the merits, that is, the defendant is acquitted because the
evidence does not show that defendant's guilt is beyond a reasonable doubt; but dismissal
does not decide the case on the merits or that the defendant is not guilty. Dismissal
terminates the proceeding, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was committed within the
territorial jurisdiction of the court, or the complaint or information is not valid or sufficient
in form and substance, etc. The only case in which the word dismissal is commonly but
not correctly used, instead of the proper term acquittal, is when, after the prosecution has
presented all its evidence, the defendant moves for the dismissal and the court dismisses
the case on the ground that the evidence fails to show beyond a reasonable doubt that
the defendant is guilty; for in such case the dismissal is in reality an acquittal because the
case is decided on the merits. If the prosecution fails to prove that the offense was
committed within the territorial jurisdiction of the court and the case is dismissed, the
dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again
prosecuted before the court of competent jurisdiction; and it is elemental that in such
case, the defendant may again be prosecuted for the same offense before a court of
competent jurisdiction.20(Citation omitted and emphasis in the original)

The grant of BBB's motion to quash may not therefore be viewed as an acquittal, which in
limited instances may only be repudiated by a petition for certiorari under Rule 65 upon
showing grave abuse of discretion lest the accused would be twice placed in jeopardy.21
Indubitably, "the Rules do not prohibit any of the parties from filing a Rule 45 Petition with
this Court, in case only questions of law are raised or involved." 22 "There is a question of
law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns
the c01Tect application of law and jurisprudence on the matter."23

Further, the question of whether or not the RTC has jurisdiction in view of the peculiar
provisions of R.A. No. 9262 is a question of law. Thus, in Morillo,24 the Court reiterated
that:

[T]he jurisdiction of the court is determined by the averments of the complaint or

Information, in relation to the law prevailing at the time of the filing of the complaint or
Information, and the penalty provided by law for the crime charged at the time of its
commission. Thus, when a case involves a proper interpretation of the rules and
jurisprudence with respect to the jurisdiction of courts to entertain complaints filed
therewith, it deals with a question of law that can be properly brought to this Court under
Rule 45.25 (Citations omitted)

We are not called upon in this case to determine the truth or falsity of the charge against
BBB, much less weigh the evidence, especially as the case had not even proceeded to a
full-blown trial on the merits. The issue for resolution concerns the correct application of
law and jurisprudence on a given set of circumstances, i.e., whether or not Philippine
courts are deprived of territorial jurisdiction over a criminal charge of psychological abuse
under R.A. No. 9262 when committed through marital infidelity and the alleged illicit
relationship took place outside the Philippines.

The novelty of the issue was even recognized by the RTC when it opined that there is still
as yet no jurisprudence on this score, prompting it to quash the Information even as it
maintained its earlier October 28, 2011 ruling that probable cause exists in the
case.26 Calling the attention of Congress to the arguments on jurisdiction spawned by the
law,27 the RTC furnished copies of the assailed order to the House of Representatives and
the Philippine Senate through the Committee on Youth, Women and Public Relations, as
well as the Committee on Justice and Human Rights.28

The issue acquires special significance when viewed against the present economic reality
that a great number of Filipino families have at least one parent working overseas. In.
April to September 2016, the number of overseas Filipino workers who worked abroad
was estimated at 2.2 million, 97.5 percent of which were comprised of overseas contract
workers or those with existing work contract while 2.5 percent worked overseas without
contract.29 It is thus necessary to clarify how R.A. No. 9262 should be applied in a question
of territorial jurisdiction over a case of psychological abuse brought against the husband
when such is allegedly caused by marital infidelity carried on abroad.

Ruling of the Court

There is merit in the petition.

"Physical violence is only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common."30 In this regard, Section
3 of R.A. No. 9262 made it a point to encompass in a non-limiting manner the various
forms of violence that may be committed against women and their children:

Sec. 3. Definition of Terms. - As used in this Act, (a) "Violence against women and their
children" refers to any act or a series of acts committed by any person against a woman
who is his wife, former wife, or against a woman with whom the person has or had a
sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:

xxxx

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or

emotional suffering of the victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to unlawful or .unwanted
deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially
dependent which includes, but is not limited to the following:

xxxx

As jurisdiction of a court over the criminal case is determined by the allegations in the
complaint or information, threshing out the essential elements of psychological abuse
under R.A. No. 9262 is crucial. In Dinamling v. People,31 this Court already had occasion
to enumerate the elements of psychological violence under Section 5(i) of R.A. No. 9262,
as follows:

Section 5. Acts of Violence Against Women and Their Children. - The crime of violence
against women and their children is committed through any of the following acts:

xxxx

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial
of financial support or custody of minor children or access to the woman's child/children.

From the aforequoted Section 5(i), in relation to other sections of R[.]A[.] No. 9262, the
elements of the crime are derived as follows:

(1) The offended paiiy is a woma.J.1 and/or her child or children;

(2) The woman is either the wife or former wife of the offender, or is a woman with
whom the offender has or had a sexual or dating relationship, or is a woman with
whom such offender has a common child. As for the woman's child or children, they
may be legitimate or illegitimate, or living within or without the family abode;

(3) The offender causes on the woman and/or child mental or emotional anguish;
and

(4) The anguish is caused through acts of public ridicule or humiliation, repeated
verbal and emotional abuse, denial of financial support or custody of minor children
or access to the children or similar· such acts or omissions.

xxxx

It bears emphasis that Section 5(i) penalizes some forms of psychological violence that
are inflicted on victims who are women and children. Other forms of psychological
violence, as well as physical, sexual and economic violence, are addressed and penalized
in other subparts of Section 5.

xxxx
Psychological violence is an. element of violation of Section 5(i) just like the mental or
emotional anguish caused on the victim. Psychological violence is the means employed by
the perpetrator, while mental or emotional anguish is the effect caused to or the damage
sustained by the offended party. To establish psychological violence as an element of the
crime, it is necessary to show proof of commission of any of the acts enumerated in Section
5(i) or similar such acts. And to establish mental or emotional anguish, it is necessary to
present the testimony of the victim as such experiences are personal to this party. x x
x.32 (Citations omitted and emphasis ours)

Contrary to the interpretation of the RTC, what R.A. No. 9262 criminalizes is not the
marital infidelity per se but the psychological violence causing mental or emotional
suffering on the wife. Otherwise stated, it is the violence inflicted under the said
circumstances that the law seeks to outlaw. Marital infidelity as cited in the law is only
one of the various acts by which psychological violence may be committed. Moreover,
depending on the circumstances of the spouses and for a myriad of reasons, the illicit
relationship may or may not even be causing mental or emotional anguish on the wife.
Thus, the mental or emotional suffering of the victim is an essential and distinct element
in the commission of the offense.

In criminal cases, venue is jurisdictional. Thus, in Trenas v. People,33 the Court explained
that:

The place where the crime was committed determines not only the venue of the action
but is an essential element of jurisdiction.1âwphi1 It is a fundamental rule that for
jurisdiction to be acquired by courts in criminal cases, the offense should have been
committed or any one of its essential ingredients should have taken place within the
territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory
where the court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by the accused. Thus, it cannot take jurisdiction over a person charged
with an offense allegedly committed outside of that limited territory. Furthermore, the
jurisdiction of a court over the criminal case is determined by the allegations in the
complaint or information. And once it is so shown, the court may validly take cognizance
of the case. However, if the evidence adduced during the trial shows that the offense was
committed somewhere else, the court should dismiss the action for want of
jurisdiction.34 (Emphasis in the original)

In Section 7 of R.A. No. 9262, venue undoubtedly pertains to jurisdiction. As correctly

pointed out by AAA, Section 7 provides that the case may be filed where the crime or any
of its elements was committed at the option of the complainant. Which the psychological
violence as the means employed by the perpetrator is certainly an indispensable element
of the offense, equally essential also is the element of mental or emotional anguish which
is personal to the complainant. The resulting mental or emotional anguish is analogous to
the indispensable element of damage in a prosecution for estafa, viz:

The circumstance that the deceitful manipulations or false pretenses employed by the
accused, as shown in the vouchers, might have been perpetrated in Quezon City does not
preclude the institution of the criminal action in Mandaluyong where the damage was
consummated. Deceit and damage are the basic elements of estafa. The estafa involved
in this case appears to be a transitory or continuing offense. It could be filed either in
Quezon City or in Rizal. The theory is that a person charged with a transitory offense may
be tried in any jurisdiction where the offense is in part committed. In transitory or
continuing offenses in which some acts material and essential to the crime and requisite
to its consummation occur in one province and some in another, the court of either
province has jurisdiction to try the case, it being understood that the first court taking
cognizance of the case will exclude the others x x x[.]35

What may be gleaned from Section 7 of R.A. No. 9262 is that the law contemplates that
acts of violence against women and their children may manifest as transitory or continuing
crimes; meaning that some acts material and essential thereto and requisite in their
consummation occur in one municipality or territory, while some occur in another. In such
cases, the court wherein any of the crime's essential and material acts have been
committed maintains jurisdiction to try the case; it being understood that the first court
taking cognizance of the same excludes the other. Thus, a person charged with a
continuing or transitory crime may be validly tried in any municipality or territory where
the offense was in part committed.36

It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act
of violence under Section 5(i) of R.A. No. 9262 in relation to Section 3(a), Paragraph (C)
was committed outside Philippine territory, that the victim be a resident of the place where
the complaint is filed in view of the anguish suffered being a material element of the
offense. In the present scenario, the offended wife and children of respondent husband
are residents of Pasig City since March of 2010. Hence, the RTC of Pasig City may exercise
jurisdiction over the case.

Certainly, the act causing psychological violence which under the information relates to
BBB's marital infidelity must be proven by probable cause for the purpose of formally
charging the husband, and to establish the same beyond reasonable doubt for purposes
of conviction. It likewise remains imperative to acquire jurisdiction over the husband. What
this case concerns itself is simply whether or not a complaint for psychological abuse under
R.A. No. 9262 may even be filed within the Philippines if the illicit relationship is conducted
abroad. We say that even if the alleged extra-marital affair causing the offended wife
mental and emotional anguish is committed abroad, the same does not place a prosecution
under R.A. No. 9262 absolutely beyond the reach of Philippine courts.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Resolutions dated

February 24, 2014 and May 2, 2014 of the Regional Trial Court of Pasig City, Branch 158,
in Criminal Case No. 146468 are SET ASIDE. Accordingly, the Information filed in Criminal
Case No. 146468 is ordered REINSTATED. SO ORDERED.
A.M. No. 02-1-18-SC November 24, 2009

RULE ON JUVENILES IN CONFLICT WITH THE LAW

RESOLUTION

Acting on the recommendation of the Chairperson and Members of the Subcommitee on

Rules Procedure for Family Courts submitting for this Court's consideration and approval
the proposed revised Rule on Children in Conflict with the Law, the Court Resolved to
APPROVE the same.

This Resolution shall take effect on December 1, 2009 following its publication in two(2)
newspapers general circulation not later than November 27, 2009.

November 24, 2009.

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

REVISED RULE ON CHILDREN IN CONFLICT WITH THE LAW

Section 1. Applicability of the Rule. - This Rule shall apply to all criminal cases involving
children in conflict with law.

A child in conflict with the law is a person who at the time of the commission of the offense
is below eighteen (18) years old but not less than fifteen (15) years and one (1) day old.

This Rule shall not apply to a person who at the time of the initial contact as defined in
Sec. 4 (q) of this Rule shall have reached the age of eighteen (18) in which case, the
regular rules on criminal procedure shall apply without prejudice to the rights granted
under Secs. 53,54,55 and 56 of this Rule.

Section 2. Objective. - The objective of this Rule is to ensure that the justice system
treats every child in conflict with the law in a manner that recognizes and upholds human
dignity and worth, and instills in the child respect for the fundamental rights ad freedom
of others. The Rule considers the developmental age of the child and the desirability of
the child's reintegration in the assumption of a constructive role in society in accordance
with the principles of balanced and restorative justice.

To attain this objective, the Rule seeks:

(a) To provide child-appropriate proceedings, including programs and services for

crime prevention, diversion, rehabilitation, re-integration and aftercare to ensure
the normal growth and development of the child in conflict with the law;

(b) To provide procedural rules dealing with children in conflict with the law that
take into account their distinct circumstances, assure all parties of a fair hearing
with each party's constitutional and statutory rights recognized and respected, and
ensure that appropriate disposition measures are implemented by law enforcers
social services and the courts;

(c) To divert from the formal justice system children in conflict with the law who can
be cared for or placed under community continuum alternative programs of
treatment, training and rehabilitation in conformity with the principles of balanced
and restorative justice;

(d) To deal with the child in a family environment whenever possible, and to
separate the child from the parents only when necessary for the child's welfare or
in the interest of public safety.

(e) To remove from children in conflict with the law the stigma of criminality and
criminal behavior;

(f) to promote, facilitate and implement in administrative and judicial proceedings

respect for the view of the child;

(g) To provide for the care, protection and wholesome moral, mental, and physical
development of children in conflict with the law; and

(h) To promote and protect the rights and interest of children as zones of peace in
situations of armed conflict, but who are alleged to be in conflict with the law. (a)

Section 3. Interpretation. - This Rule shall be interpreted liberally to promote the best
interest of the child in conformity with Philippine laws, the United Nations' Convention on
the Rights of the Child and relevant international treaties and protocols.

Section 4. Definitions. - As used in this Rule,

(a) Age of criminal responsibility is the age when a child, fifteen (15) years and one
(1) day old or above but below eighteen (18) years of age, commits an offense with
discernment.

(b) Bail refers to the security given for the release of the child in custody of the law,
furnished by the child, the child's parent, guardian, or a bondsman, to guarantee
the child's appearance before the court. Bail may be posted in a form such as
corporate security, property bond or cash deposit.

(c) Balanced and Restorative Justice is a principle in juvenile justice that requires a
process of resolving conflicts with the participation of the victim, the child in conflict
with the law, and the community. It seeks to obtain reparation for the victim;
reconciliation to the victim, the child in conflict with the law, and the community,
and the reassurance that the child in conflict with the law can be reintegrated into
society. It also enhances public safety by involving the victim, the child in conflict
with the law, and the community in prevention strategies. (a)
(d) Best interest of the child refers to the totality of congenial to the survival,
protection and feelings of security of the child and most encouraging to the child's
physical, psychological and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development.

(e) Case study report is a written report on the social case inquiry conducted by the
social worker of the local government unit or the Department of Social Welfare and
Development or by the social worker designated by the court on the social, cultural,
economic and legal status or condition of the child in conflict in the law. It shall
include, among other matters, the child's development age; educational attainment;
family and social relationships; the quality of the child's peer group; the strengths
and weaknesses of the family; parental control; the child's attitude towards the
offense ; the harm or damage done to others resulting from the offenses, if any;
and the attitude of the parents towards the child's responsibility for the offense. The
social worker shall also include an initial determination of the child's discernment in
the commission of the offense. (a)

(f) Community continuum refers to the aftercare of a child in conflict with the law
and is a provides continuous guidance and support to the child in conflict with the
law upon release from rehabilitation and subsequent reintegration into society.
Community continuum for the child includes timely release, suitable residence, food,
clothing, available employment and sufficient means to facilitate successful
reintegration in local government unit and other appropriate agencies. (n)

(g) Corporal punishment is any kind of physical punishment inflicted on the body as
distinguished from pecuniary punishment or fine.

(h) Court refers to a designated family court or in places where there are no
designated family courts, any regional trial court hearing family and youth cases. (a)

(i) Deprivation of Liberty refers to any form of detention or imprisonment, or to the

placement of a child in conflict with the law in a public or private custodial setting,
from which the child in conflict with the law is not permitted to leave at will except
by order of any judicial or administrative authority. (a)

(j) Discernment means the capacity of the child at the time of the commission of
the offense to understand the differences between right and wrong and the
consequences of the wrongful act.

(k) Disposition conference is a meeting held by the court with the social worker who
prepared the case study report, together with the child in conflict with the law and
the parents or guardian ad litem, and the child's counsel for the purpose of
determining the disposition measures appropriate to the personal and special
circumstances of the child.

(l) Diversion refers to an alternative child-appropriate process of determining the

responsibility and treatment of a child in conflict with the law on the basis of the
child's social, cultural, economic psychological or educational background without
resorting to formal court adjudication.

(m) Diversion programs refer to programs the child in conflict the law is required to
undergo in lieu of formal court proceedings.

(n) Expedited Transfer of a Child is a process where a child who commits an offense
is immediately brought by the apprehending officer or private individual to a social
worker for preliminary determination of discernment. (n)

(o) Guardian Ad Litem is a person appointed by the court to protect the best interest
of the child. (a)
(p) In conflict with the law means take into custody, detained, or charged with the
commission of an act defined and punished as a crime or offense under the law,
including violations of traffic laws, rules and regulations, and ordinances of local
government units. (a)

(q) Initial contact refers to apprehension or taking into custody of a child in conflict
with the law by law enforcement officers or private citizens. It includes the time the
child alleged to be in conflict with the law receives a subpoena under Section 3 (b)
of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section
6 (a) or Section 9(b) of the same Rule in cases that do not require preliminary
investigation, or where there is no necessity to place the child alleged to be in
conflict with the law under immediate custody. (n)

(r) Intake report is the initial written report containing the personal and other
circumstances of the child in conflict with the law prepared by the social worker
assigned to assist the child entering the justice system.

(s) Intervention programs refer to a series of individualized treatment activities or

programs designed to address issues that caused the child to commit an offense .
These may include counseling, skills, training, education, and other activities that
are aimed to improve and enhance the child's psychological, emotional and
psychosocial well being. (n)

(t) Law Enforcement Officer refers to the person in authority or an agent as defined
in Article 152 of the Revised Penal Code, including a barangay tanod. (n)

(u) Non-Serious Offense refers to an offense where the imposable penalty for the
crime committed is not more than six (6) years imprisonment. (n)

(v) Probation is an alternative disposition, ordered by the court, under which a child
in conflict with the law is released after conviction and sentence and permitted to
remain at home or with an appropriate custodian, subject to certain terms and
conditions imposed by the court.

(w) Recognizance is an undertaking in lieu of a bond, assumed by a mother or

father, or appropriate guardian or custodian, or in their absence, the nearest
relative, or any responsible member of the community to assume custody of a child
in conflict with the law and be responsible for the appearance of the child in court
whenever required during the pendency of the case. (a)

(x) Segregation refers to the procedure where, upon initial contact with a child
alleged to have committed an offense, the law enforcer places the child in a separate
and different area from adult detention prisoners, and ensures that female children
are separated from male children. (n)

(y) Serious offense refers to an offense where the imposable penalty for the offense
committed exceeds six (6) years imprisonment. (a)

(z) Status offenses refers to offenses that discriminate only against a child, such as
curfew violations, truancy, parental disobedience and the like. (n)

(aa) Suspended sentence is the holding in abeyance of the service of the sentence
imposed by the court upon a finding of guilt of the child in conflict with the law,
whereby the child undergoes rehabilitation within a fixed period under such terms
and conditions as may be ordered by the court. (n)

(bb) Victimless Crimes refer to offenses where there are no private offended
parties. (n)

(cc) Youth detention home refers to a 24-hour child-caring institution managed by

accredited local government units and licensed and/or accredited non-government
 organizations providing short-term residential care for children in conflict with the
law and where the child may be physically restricted by order of any judicial,
administrative or other public authority, and from which the child is not permitted
to leave at will, pending court disposition of the charge or transfer to other agencies
or jurisdiction. (a)

(dd) Youth rehabilitation center refers to a 24-hour residential care facility managed
by the Department of Social Welfare and Development, local government units,
licensed and/or accredited non-government organizations monitored by the
Department of Social Welfare and Development. The Center provides care,
treatment and rehabilitation services for children in conflict with the law under a
structured therapeutic environment through the guidance of a trained staff, where
the physical mobility of the children may be restricted pending court disposition of
their cases. (a)

Section 5. Determination of Age. - The child in conflict with the law shall enjoy the
presumption of minority and shall enjoy all the rights of a child in conflict with the law
until proven to be eighteen years old or older at the time of the commission of the offense.
The age of the child shall be determined according to the following rules:

(1) The best evidence to prove the age of a child is an original or certified true copy
of the certificate of live birth;

(2) In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificates and school records or any pertinent document that shows the
date of birth of the child;

(3) In the absence of the documents under paragraphs 1 and 2 of this section due
to loss, destruction or unavailability, the testimony of the child, the testimony of a
member of the family related to the child by affinity or consanguinity who is qualified
to testify on matters respecting pedigree such as the exact age or date of birth of
the child pursuant to Sec.40, Rule 130 of the Rules on Evidence, the testimonies of
the other persons, the physical appearance of the child and other relevant evidence,
shall suffice.

Section 6. Burden of Proof of Age. - Any person alleging the age of the child in conflict
with the law has the burden of proving the age of such child.

If the age of the child is contested prior to the filing of the information in court, a case for
determination of age under summary proceeding may be filed before a court which shall
render its decision within 24 hours from receipt of the appropriate pleadings of all the
parties. (n)

In all cases involving a child, the court shall make a categorical finding as to the age of
the child.

Section 7. Exemption from Criminal Liability. - A child fifteen years of age or under at the
time of the commission of the offense shall be exempt from criminal liability. However,
the child shall be subjected to an intervention program as provided for in Republic Act No.
9344 when consented to by the child and the parents. (a)

Exemption from criminal liability does not include exemption from civil liability which shall
be enforced in accordance with the provisions of Article 221 of the Family Code in relation
to Article 101 of the Revised Penal Code and Rule 111 of the Revised Rules of Criminal
Procedure. If the act or omission of the child involves a quasi-delict, Article 2180 of the
Civil Code shall apply.

Section 8. Procedure for Handling Children Exempted from Criminal Liability. - If it is

determined at the initial contact that the child is 15 years of age or below, the procedure
provided in Section 20, Republic Act No. 9344 shall be observed as follows:
 (a) The authority who had the initial contact with the child shall immediately release
the child to the custody of the mother or father, or the appropriate guardian or
custodian, or in their absence, the nearest relative.

(b) The authority shall immediately notify the local social welfare and development
officer of the taking of the child into custody.

(c) The local social welfare and development officer shall, with the consent of the
child and the person having custody over the child, determine the appropriate
intervention programs for the child.

(d) If the child's parents, guardians or nearest relatives cannot be located, or if they
refuse to take custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay official or a
member of the Barangay Council for the Protection of Children; a local social welfare
and development officer; or, when and where appropriate, the Department of Social
Welfare and Development.

(e) If the child has been found by the local social welfare and development office to
be abandoned, neglected or abused by the parents, or if the parents and the child
do not consent to or do not comply with the prevention program, the Department
of Social Welfare and Development or the Local Social Welfare and Development
Office shall file before the court a petition for involuntary commitment pursuant to
Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare
Code." (a)

Section 9. Procedure for Children Not Exempted from Criminal Liability. - A child fifteen
(15) years and one (1) day old or above but below eighteen (18) years of age at the time
of the commission of the offense shall, at the sound discretion of the court and subject to
its supervision, be released on recognizance to the care of the willing and responsible
mother or father, or appropriate guardian or custodian, or, in their absence, the nearest
relative. However, if the prosecution determines that the child acted with discernment,
the child shall be proceeded against in accordance with Secs. 25 to 29 or, in case of
diversion, Secs. 31 to 38 of this Rule.

Section 10. Determination of Discernment. - Discernment is preliminarily determined by

a social worker and finally by the court in the case of a child charged with a non-serious
offense. In all other cases, discernment is determined by the court.

The determination of discernment shall take into account the ability of a child to
understand the moral and psychological components of criminal responsibility and the
consequences of the wrongful act; and whether a child can be held responsible for
essentially antisocial behavior.

Section 11. Duties of a Person in Authority Taking a Child into Custody. - Any person
taking into custody a child in conflict with the law shall:

(a) Assign an alias to the child;

(b) Ensure that the blotter details containing the true name of the child, if any, are
modified, to reflect the alias by which the child shall be known throughout the
proceedings;

(c) Explain to the child in simple language and in a dialect that can be understood
the reason for placing the child under custody, and the offense allegedly committed;

(d) Advise the child of his/her constitutional rights in a language or dialect

understandable to the child;

(e) Present proper identification to the child;

 (f) Refrain from using vulgar or profane words and from sexually harassing or
abusing, or making sexual advances on the child;

(g) Avoid displaying or using any firearm, weapon, handcuffs or other instrument of
force or restraint, unless absolutely necessary and only after all methods of control
have been exhausted and have failed;

(h) Avoid violence or unnecessary force and refrain from subjecting the child to
greater restraint than is necessary for apprehension and custody;

(i) Ensure that a body search of the child is done only by a law enforcement officer
of the same gender as that of the child;

(j) Ensure expedited transfer of the child by immediately, or not later than eight (8)
hours after apprehension, turning over custody of the child to the local social welfare
and development office or other accredited non-government organizations;

(k) Notify the child's parents, guardians or custodians or in their absence, the child's
nearest relative and the Public Attorney's Office of the child's apprehension;

(l) Ensure that the child is not locked up in a jail or detention cell during the
investigation;

(m) Bring the child immediately to an available government medical or health officer
for a thorough physical and mental examination;

(n) Ensure that should detention of the child in conflict with the law be necessary,
the segregation of the child be secured in quarters separate from that of the opposite
sex and adult offenders, except where a child is taken into custody for reasons
related to armed conflict, either as combatant, courier, guide or spy, and families
are accommodated as family units in which case, the child shall not be separated
from the family;

(o) Record all the procedures undertaken in the initial investigation including the
following: whether handcuffs or other instruments of restraint were used, and if so,
the reason for such use; that the parents or guardian of the child, the Department
of Social Welfare and Development, and the Public Attorney's Office were informed
of the taking into custody of the child and the details thereof; the measures that
were undertaken to determine the age of child, and the precise details of the physical
and medical examination or in case of failure to submit a child to such examination,
the reason therefore; and

(p) Ensure that all statements signed by the child during the investigation are
witnessed and signed by the child's parents or guardian, social worker or legal
counsel in attendance. (n)

Section 12. Rights of a Child Under Custody. - At the custodial investigation, a child who
has been taken into custody shall have the following rights:

(a) At the police station, to be immediately assisted by a lawyer and a social worker
who shall make sure that the child is effectively informed of his/her rights, as far as
the child's maturity and discernment allow;

(b) To demand that the questioning or interrogation take place in conditions that
respect the rights of the child and are complaint with child-sensitive procedural
rules;

(c) To have the child's family located and notified with dispatch;

(d) To be informed, together with the parents, guardians or custodians or nearest

relatives, by the social welfare and development officer of the local government unit
 or of the Department of Social Welfare and Development of the consequences of the
offense alleged to have been committed with a view towards counseling and
rehabilitation, diversion from criminal justice system and reparation if appropriate;

(e) To have the results of the child's medical and dental examination kept
confidential unless otherwise ordered by the court. Whenever medical treatment for
any physical or mental defect is necessary, to demand that steps must be
immediately taken by the medical officer to provide the child with the necessary and
proper treatment;

(f) To have the right of privacy respected and protected at all times, including the
utilization of all measures necessary to promote this right, including the exclusion
of the media; and

(g) While under investigation, not to be fingerprinted or photographed in a

humiliating and degrading manner.

Section 13. Taking Custody of a Child Without a Warrant. - The law enforcement officer
or a private person taking into custody a child in conflict with the law without a warrant
shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of
Criminal Procedure and shall forthwith deliver the child to the nearest police station. The
child shall be proceeded against in accordance with Section 7 of Rule 112 of the Rules of
Criminal Procedure.

Section 14. Conduct of Initial Investigation by the Police. - The police officer conducting
the initial investigation of a child conflict with the law shall do so in the presence of either
or both of the parents, guardian or custodian, or in their absence, the nearest relative of
the child, the child's counsel of choice, or a lawyer from the Public Attorney's Office, and
the local social welfare officer. A representative of a non-government organization,
religious group, or member of the Barangay Council for the Protection of Children shall be
allowed to be present at the investigation in the absence of the parents, guardian, relative,
or social welfare officer. (a)

Section 15. Guidelines for Fingerprinting and Photographing of the Child. - The following
guidelines shall be observed when fingerprinting or photographing the child:

(a) The child's fingerprint and photograph files shall be kept separate from those of
adults and shall be kept confidential. They may be inspected by law enforcement
officers only when necessary for the effective discharge of their duties and upon
prior authority of the court; and

(b) The fingerprint and photograph shall be removed from the files and destroyed:
(1) if the case against the child is not filed, or is dismissed; or (2) when the child
reaches twenty-one (21) years of age and there is no record that the child
committed an offense after reaching eighteen (18) years of age.

Section 16. Intake Report by the Social Welfare Officer. - Upon the taking into custody
of a child in conflict with the law, the social welfare officer assigned to the child shall
immediately undertake a preliminary background investigation of the child and, should a
case be filed in court, submit to the court the corresponding intake report prior to the
arraignment.

Section 17. Filing of Criminal Action. - A criminal action may be instituted against a child
in conflict with the law by filing a complaint with the prosecutor.

All criminal actions commenced by complaint or information shall be prosecuted under the
direction and control of the public prosecutor assigned to the court.

Petitions for confinement of a child drug dependent shall be filed under Section 21 of the
Rule on Children Charged under Republic Act No. 9165. (n)
Section 18. Prosecution of Civil Action. - When a criminal action is instituted against a
child in conflict with the law, the action for recovery of civil liability arising from the offense
charged shall be governed by Rule 111 of the Revised Rules of Criminal Procedure.

Section 19. Preliminary Investigation. - As far as consistent with this Rule, the
preliminary investigation of a child conflict with the law shall be governed by Section 3 of
Rule 112 of the Revised Rules of Criminal Procedure. A specially trained prosecutor shall
be assigned to conduct the inquest, preliminary investigation and prosecution of the case
involving a child in conflict with the law. The child, on the other hand, shall be assisted by
a private lawyer or if none, a lawyer from the Public Attorney's Office. If there is an
allegation or evidence of torture or ill-treatment of a child in conflict with the law during
custody or detention, it shall be the duty of the prosecutor to investigate the same. (n)

Section 20. Conduct of Preliminary Investigation. - Preliminary investigation shall be

conducted in the following instances: (a) when the child in conflict with the law does not
qualify for diversion; (b) when the child, the parents or guardian do not agree to diversion
as provided in Sections 27 and 28 of Republic Act No. 9344; or (c) when, after considering
the assessment and recommendation of the social worker, the prosecutor determines that
diversion is not appropriate for the child in conflict with the law. (n)

At the preliminary investigation, should there arise a need for clarificatory questions to be
propounded on the child, the Rule on Examination of a Child Witness shall apply.

Section 21. Filing of Information. - If the investigating prosecutor finds probable cause
to hold the child in conflict with the law for trial, there being discernment, the
corresponding Resolution and Information shall be prepared for the approval by the
provincial or city prosecutor, a s the case may be. The child and the mother or father, or
appropriate guardian or custodian, or in the absence thereof, the nearest relative, and the
child's private counsel or lawyer from the Public Attorney's Office shall be furnished
forthwith a copy of the approved resolution and the Information.

The Information shall be filed with the court within forty-five (45) days from the start of
the preliminary investigation. (n)

No Information shall be filed against a child for the commission of the following:

(a) status offences;

(b) vagrancy and prostitution under Section 202 of the Revised Penal Code;

(c) mendicancy under Presidential Decree No. 1563; and

(d) sniffing of rugby under Presidential Decree No. 1619.

Children taken into custody for the foregoing shall, with their consent and that of their
parents, guardian or custodian, instead undergo appropriate counseling and treatment
program. (n)

Section 22. Duties of the Clerk of Court Upon Receipt of information. - The Clerk of Court,
upon receipt of the Information, shall:

(1) Maintain a separate case docket or logbook for cases involving children in conflict
with the law. Whenever possible, the Clerk of Court shall use color coding or other
method to easily distinguish the records of children in conflict with the law from the
other case records;

(2) Determine whether the offense charged qualifies for diversion, that is it
punishable by imprisonment of not more than twelve (12) years, regardless of fine,
or fine alone regardless of the amount;
 (3) If the crime charged is punishable by such imprisonment, immediately assign a
temporary case number in accordance with Sec. 23 of this Rule and raffle off the
case to a court so that its Diversion Committee can immediately undertake the
appropriate action under Section 33 of this Rule; and

(4) If the crime charged does not quality for diversion because it is punishable by
imprisonment of more than twelve (12) years, the case shall be assigned a regular
criminal case docket number raffled off to a court for formal proceedings. (n)

Section 23. Docketing of the Case - a case that qualifies for diversion under paragraph 3
of the preceding Section shall not be docketed as a regular criminal case but instead shall
be assigned a temporary case number as follows: CICL-(no.) ___- (year) ___ -D (which
means diversion), before the same is raffled off to the appropriate court.

Section 24. Venue - Subject to the provisions of Section 15, Rule 110 of the Revised
Rules of Criminal Procedure, any criminal or civil action involving a child in conflict with
the law shall be instituted and tried in the appropriate court nearest the place where the
offense was committed or where any of its essential elements occurred.

Section 25. Released of Children on Recognizance to the Parents, Guardian, Custodian

or Nearest Relative. - The release of a child from a custody during the pendency of the
case involving a non-serious offense as defined in Sec. 4 (u) of this rule may be ordered
by the court only after a hearing for that purpose, and upon favorable recommendation of
the social worker assigned to the child, with the conformity of the public prosecutor and
the private complainant. The child shall be released to the custody of a willing and
responsible mother or father, or appropriate guardian or custodian or in their absence,
the nearest relative, who shall be responsible for the child's good behavior and appearance
in court whenever required.

No child shall be ordered detained in jail pending trial or hearing of the child's case, subject
to the provisions of this Rule. (n)

Section 26. Commitment and transfer to a youth Rehabilitation Center. - A child charged
with non-serious offense as defined in Section 4 (u) of this Rule, unless released on bail
or recognizance, may be transferred to a youth detention home rehabilitation center or
other appropriate facility such as the Department of Social Welfare and Development
which shall ensure the appearance of the child in court.

In the absence of a youth detention home established by the local government pursuant
to Section 8 of the Family Courts Acts, in the city or municipality where the child resides
or, a local rehabilitation center recognized by the government in the province, city or
municipality within the jurisdiction of the court, or the Department of Social Welfare and
Development or other appropriate local rehabilitation center, the youth shall be placed
under the care of a provincial, city or municipality jail which shall ensure the appearance
of the child in court when so required. (a)

Section 27. Bail as a Matter of right. - All children in conflict with the law shall be admitted
to bail as a matter of right before final conviction of an offense not punishable by reclusion
perpetua life imprisonment.

Section 28. When Bail Not a Matter of Right. - No child charged with an offense
punishable by reclusion perpetua or life imprisonment shall be admitted to bail when
evidence of guilt is strong. In this case, the court shall commit the to a youth detention
home or youth rehabilitation center, or in the absence thereof, to the care of a provincial,
city or municipal jail as provided for in Section 27 of this Rule, which shall be responsible
for the appearance of the child in court whenever required.

Section 29. Care of Child in Youth Detention Homes or Rehabilitation Centers. - The child
in conflict with the law who has been transferred to a youth rehabilitation center or youth
detention home shall be provided with a healthy environment. If the child is placed under
the care of the provincial, city or municipal jail, the child shall be provided with adequate
quarters separate from adults and prisoners of the opposite sex depending on the age,
sex, sexual lifestyle, and such other circumstances and needs of the child.

Section 30. Case Study Report. - After the institution of the criminal action, the social
worker assigned to the child shall immediately undertake a social case inquiry of the child
and the child's family, the child's environment and such other matters relevant to aid the
court in the proper disposition of the case. The report shall be submitted to the court
preferably before arraignment. If not available at that time, the Report must be submitted
to the court as soon as possible.

Section 31. Diversion Committee - In each court, there shall be organized a Diversion
Committee composed of its Branch Clerk of Court as chairperson; the prosecutor, a lawyer
of the Public Attorney's Office assigned to the court, and the social worker assigned by
the court to the child, as members.

Section 32. Proceedings Before Arraignment - The Diversion Committee shall determine
if the child can be diverted and referred to alternative measures or services. Subject to
pertinent provisions of this Rule and pending determination of diversion by the Committee,
the court shall release the child on recognizance to the parents, guardian or custodian, or
nearest relative; or if this is not advisable, commit the child to an appropriate youth
detention home or youth rehabilitation center which shall be responsible for the presence
of the child during the diversion proceedings.

If the Diversion Committee determines that diversion is not proper, or when the child or
the private complainant object to the diversion, or when there is failure if the diversion
program if undertaken by the child, it shall submit a report to the court recommending
that the case be subjected to formal criminal proceedings. The court in turn shall direct
the transmittal of the records of the case to the Office of the Clerk of Court for the
assignment of a regular criminal docket number to the case as follows: CICL Crim. Case
No.___-___( year). The Office of the Clerk of Court shall thereafter return the case to the
court for arraignment and formal proceedings.

Section 33. Proceeding Before the Diversion Committee. - Upon receipt by the
Committee of a case for diversion from the Office of the Clerk of Court, the chairperson
shall call for a conference with notice to the child, the mother or father, or appropriate
guardian or custodian, or in their absence, the nearest relative, the child's counsel, and
the private complainant and counsel to determine if the child can be diverted to the
community continuum instead of formal court proceedings.

In determining whether diversion is appropriate for the child, the Committee shall consider
the following factors:

(a) The past records, if any, involving the child in conflict with the law;

(b) The likelihood that the child will be an obvious threat to himself/herself and the
community;

(c) Whether the child has feeling of remorse for the offense committed;

(d) If the child or the parent are indifferent or hostile; and whether this will increase
the possibility of delinquent behavior; and

(f) If community-based programs for the rehabilitation and reintegration of the child
are available.

If the Committee finds that diversion is appropriate, it shall design a diversion program in
accordance with Section 34 of this Rule for the consideration and approval of the court.

Should the Committee determine that diversion is not appropriate, it shall make the
corresponding report and recommendation in accordance with Section 31 of this Rule.
The Committee cannot recommend diversion in case the child or the private complainant
objects.

Section 34. Diversion programs. -The Committee shall design a diversion program
talking into consideration the individual characteristics and peculiar circumstances of the
child in conflict with the law. The program shall be for a specific and definite period and
may include any or a combination of the following:

(a) Written or oral reprimand or citation;

(b) Written or oral apology;

(c) Payment of the damage caused;

(e) Payment of the cost of the proceedings;

(f) Return of the property;

(g) Guidance and supervision orders;

(h) Counseling for the child and his family;

(i) Training, seminar and lectures on (i) anger management skills; (ii) problem-
solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills
that will aid the child to properly deal with situations that can lead to a repetition of
the offense;

(j) Participation in available community-based programs;

(k) Work-detail program in the community; or

(l) Institutional care and custody.

The Committee shall also include in the program a plan that will secure satisfaction of the
civil liability of the child in accordance with Sec. 2180 of the Civil Code. Inability to satisfy
the civil the liability shall not by itself be a ground to discontinue the diversion program of
a child. On the other hand, consent to diversion by the child or payment of civil indemnity
shall not in any way be construed as admission of guilt and used as evidence against the
child in the event that the case is later on returned to the court for arraignment and
conduct of formal proceedings.

The court shall act on the recommendation within five (5) days from the termination of
the hearing.

Section 36. Undertaking. - In all cases where a child in conflict with the law is granted
diversion by the court, the child, together with the mother or father, or appropriate
guardian or custodian, or in their absence, the nearest relative, and the child's counsel
shall sign an undertaking to comply with their respective duties and obligation under the
terms and conditions of the express agreement by complainant assisted by counsel to the
diversion of the child, shall be approved by and enforced under the supervision and control
of the court. It shall contain the following minimum principal terms and conditions:

(a) The child shall appear before the social worker assigned to the child by the Court
that approved the diversion program at least once a month for evaluation of its
effectiveness.

(b) The child shall faithfully comply with the term and conditions of the program.
Should the child fail to do so, the Committee shall report such failure to the court
which shall set a show- cause hearing with notice to the child and private
complainant. The court shall thereafter determine whether to allow the child to
 continue with the diversion program, or to end the same and direct that the case
now undergo a formal proceeding.

Should the child be permitted by the court to reside in a place under the jurisdiction of
another court, control and supervision over such child shall be transferred to the
appropriate court of that place. The diversion records of the case such as the minutes of
the diversion proceedings, copy of the undertaking, the intake and case study reports and
all other pertinent documents shall be transmitted to the court to which jurisdiction over
the diverted child has been transferred.

Section 37. Report of Social Worker. - The court social worker shall conduct regular
monthly visit to the child undergoing diversion proceedings and shall submit the
corresponding reports about the status of the diverted child to the committee. At any time
before or at the end diversion period, the committee shall file with trhe court of the report
recommending termination or extension of diveertion, as the case may be. The report and
recommendation shall be heard by the court within fifteen (15) dyas form receipt, with
notice to the members of the Committee, the child, the mother or father, or the
appropriate guardian or custodian, or in the absensce thereof, the nearest relative, the
child's councel, and the complainant and counsel.

The court shall thereafter determine whether the diversion program has been full and
satisfactorily complied with

Section 38. Closure Order. - On the basis of the report and recommendation of the
Committee, the court may:

(a) Issue a closure order terminating the case if it is convinced that the child has
complied satisfactorily with the diversion program; or

(b) Extend the period of diversion if it is convinced that the child may still be
rehabilitated; or

(c) Order the case to undergo formal court proceedings if it finds that the child has
not complied with the diversion program, is incorrigible, or that the program is not
serving its purpose.

In case of the judicially-approved transfer of residence of the child in conflict with the law,
the court to which supervision of the diversion program was transferred shall make the
proper finding. IF it finds that diversion has been successful. It shall order the closure of
the case. However, if it determines that diversion has failed it shall return the case to the
original court for formal criminal proceedings.

Section 39. Rights of the Child in Conflict with the Law. - In all criminal proceedings, the
child in conflict with the law shall have the following rights which shall be respected and
protected by the court:

(a) To be presumed innocent until guilt is proved beyond reasonable doubt;

(b) To be informed promptly and directly of the nature and cause of the charge and
if appropriate, through the child's mother, father, legal guardian, or appropriate
custodian;

(c) To be present at every stage of the proceedings, from arraignment to

promulgation of judgement. The child may, however, waive presence at the rial
pursuant to the stipulations set forth in the bail bond, unless presence at the trial is
specifically ordered by the court for purposes of identification. The absence of the
child without justifiable cause at the trial of which there was due notice shall be
considered a waiver of the right of the child to be present. Escape by the child under
custody shall be deemed a waiver of the right to be present in all subsequent
hearings until custody over such child is gained;
 (d) To have legal and other appropriate assistance in the preparation and
presentation of the child's defense; in case of a child arrested for reasons related to
armed conflict, to have immediate free legal assistance;

(e) If detained, to be released (I) on recognizance to the willing and responsible

mother or father or appropriate guardian or custodian, or in the absence thereof,
the nearest relative; (ii) on bail; or (iii) by commitment to a youth detention home
or youth rehabilitation center, 1avvphi1

(f) Not to be detained in a jail or transferred to an adult facility pending trial or

hearing of the case, unless detention is used as a last resort which must be done
for the shortest time possible, and only upon order by the court;

(g) In the case the child has been arrested for reasons related to armed conflict,
either as combatant, courier, guide or spy:

(i) To be segregated and have separate detention quarters from adults except
where families ate accommodated as family un its;

(ii) To immediate free legal assistance in the absence of private counsel;

(iii) To immediate notice of such arrest to the parents, guardians or custodians

or nearest relatives of the child; and;

(iv) To be released on recognizance within twenty-four (24) hours to the

custody of the Department of Social Welfare and Development or any
responsible member of the community as determined by the court.

(h) To testify as a witness in his/her own behalf; and subject to cross-examination

only on matters covered by direct examination. The child shall not be compelled to
be a witness against himself/herself and the child's silence shall not in any manner
prejudice him/her;

(i) To confront and cross-examine the witnesses against him/her;

(j) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in the child's behalf

(k) To have speedy and imparial trial, with legal or other appropriate assistance and
preferable in the presence of the child's parents or legal guardian or custodian,
unless such presence is considred not to be in the best interest of the child taking
into account the latter's age or other peculiar circumstances;

(l) To be accorded all the rights un der the Rule on Examination of a Child Witness;

(m) To have the child's privacy fully protected in all stages of the proceedings; and

(n) To appeal in all cases allowed and in the manner prescribed by law.

Section 40. Rights if Victims of Offences Committed by Children in Conflict with the Law. -
In any case involving a child in conflict with the law, the victim has the following rights:

(1) To be reasonably protected from the child in conflict with the law;

(2) To timely notice of any public proceedings, or any parole proceedings involving
the crime or of any release or escape of the child in conflict with the law;

(3) Not to be excluded from any public proceeding, unless the court, after receiving
any clear and convincing evidence, determines that the testimony by the victim
would be materially altered if the victim heard other testimony in that proceeding.
 (4) To be reasonably heard at any administrative or public proceeding involving
diversion, release, plea, suspension of sentence and determination of disposition
measures, or any parole proceeding;

(5) To confer with the prosecutor in the case;

(6) To avail of legal assistance from the Public Attorney's Office, Integrated Bar of
the Philippines. any other legal aid office or any law practitioner.1avvphi1

(7) To be informed of the availability of compensation from the Department of

Justice Board of Claims in accordance with the provisions of Rep Act. No.7309.

(8) To be entitled to support services from the Department of Social Welfare and
Development and local government units;

(9) To be entitled to all legal remedies and support as provided for under the Family
Code;

(10) To be informed of the rights and the services available to victims of offenses
including the right to apply for a protection order;

(11) To full and timely restitution as provided in law;

(12) To proceedings that are free from unreasonable delay; and

(13) To be treated with fairness and with respect for the victim's dignity and privacy.

Section 41. Responsibilities of the Court. - For the protection of the rights of the child in
the conflict with the law, the court shall have the following responsibilities:

(1) To monitor the status of a child whose case is pending in its court placed in a
youth detention center or other institution during the pendency of the child's case;

(2) To receive and investigate complaints concerning violations of the rights of the
child whose case is pending on its court;

(3) To require all professionals working for the welfare of the child, such as barangay
captains, teachers, social workers, medical professionals, and law enforcers, to
render regular monthly reports to the court.

(4) To order access to adequate services for rehabilitation, counseling and other
forms of reintegration for the child;

(5) To ensure that the child who is capable of forming his or her own views has the
right to express those views freely in all matters affecting the child, and that such
views be accorded due weight in accordance with the developmental age and
maturity of the child;

(6) To ensure that the child, either directly or through a representative , is provided
the opportunity to be heard in all proceedings affecting such child;

(7) To ensure communication at all times between the judge and the child;

(8) To ensure that the child sits with close family members of the child's choice
during the court proceedings;

(9) To ensure that the child can communicate freely with counsel at all times;

(10) To ensure that the child is informed in age-appropriate language of all stages
of the judicial proceeding affecting such child;
 (11) To ensure that a child placed in a Youth Detention Home or Youth Rehabilitation
Center or in any child facility be given appropriate medical examination in order to
determine and put on record any evidence of ill-treatment; to identify any physical
or mental condition requiring medical attention; and thereafter make sure that child
is provided by adequate treatment and medical attention;

(12) To insure that a child is informed as soon as possible of the death, serious
illness or injury of any immediate family member and be allowed to visit the ill family
member or attend the funeral, when appropriate and advisable;

(13) To ensure if a child dies during the pendency of the case or within six (6)
months of release, an independent inquiry is conducted on the circumstances of the
death and a report thereof, including the child's death certificate, be made available
to the child's mother or father , guardian, custodian or nearest relative;

(14) When appropriate and advisable, to allow the child temporarily leave the
detention home or rehabilitation center by means of an "out-on-pass" order to
attend special family occasions such as Christmas and New Year celebrations. The
"out-on-pass" order shall contain reasonable restrictions to ensure safety, security
and timely return to detention as may be determined by the court;

(15) To allow at all times, and from the moment of initial contact, any member of
the family or the guardian of the child to visit the child, unless prejudicial to the
latter's best interest;

(16) To allow the appointment of a Guardian Ad Litem if available and advisable, to

enable the child to raise concerns and complaints without fear or retribution; and

(17) To undertake all other appropriate measures to ensure the promotion of the
best interest of the child and the child's eventual reintegration in society.

Section 42. Determination of the Bests Interests of the Child. - The following factors may
be considered in determining the best interests of a child in conflict with the law: the
child's age and sex, the child's mental and physical health, the mental and physical health
of the parents, their lifestyle and other social factors; the emotional ties between the
parents and the child, the ability of the parents to provide the child with food, shelter,
clothing and medical care; the established living pattern for the child concerning school,
home, community and religious institution, quality of schooling, the existence of other
relatives who may be in a better position to be with the child and the child's relationship
with these relatives; the child's background, maturity and level of understanding, sexual
lifestyle and any other characteristics and needs of the child that the court may deem
relevant.

Section 43. Arraignment and Plea. - The provisions of Rules 116 and 117 of the Revised
Rules of Criminal Procedure shall apply to the arraignment of the child in the conflict with
the law. The arraignment shall be scheduled within three (3) days from the date of receipt
of the complaint or information by the court, unless a shorter period is provided for by
law.

In case the child is not assisted by a private counsel, the court shall immediately appoint
its Public Attorney as the child's counsel de oficio.

Arraignment shall be held in chambers and conducted by the judge by furnishing the child
and counsel a copy of the complaint or information, reading the same in a language or
dialect known to and understand by the child, explaining the nature and consequences of
a plea of guilty or not guilty and asking the child's plea.

Section 44. Pre-trial. - The provisions of Rule 118 of the Revised Rules of Criminal
Procedure shall govern the pre-trial of the child in conflict with the law. Agreements or
admissions made during the pre-trial conference shall be in writing and signed by the
child, the mother, the father or duly appointed guardian, and counsel; otherwise, the
agreements or admissions shall not be admissible against the child.

Whenever possible and practicable, the court shall explore all possibilities of settlement of
the case, except its criminal aspects. Plea bargaining shall be resorted to only as a last
measure when it shall serve the best interest of the child and the demands of truth and
restorative justice.

Section 45. Trial. - All hearings shall be conducted in am manner conductive to the best
interest of the child and in an environment that will allow the child to participate fully and
freely in accordance with the Rule on Examination of a Child Witness.

Section 46. Guiding Principles in Judging the Child. - Subject to the provisions of the
Revised Penal Code, as amended, and other special laws, the judgment against a child in
conflict with the law shall be guided by the following principles:

(1) The judgment shall be in proportion to the gravity of the offense, and shall
consider the circumstances and the best interest of the child, the rights of the victim,
and the needs of society in line with the demands of balanced and restorative justice.

(2) Restrictions on the personal liberty of the child shall be limited to the minimum.
Where discretion is given by the law to the judge whether the penalty to be imposed
is fine or imprisonment, the imposition of fine should be proffered as the more
appropriate penalty.

(3) No corporal punishment shall be imposed.

(4) In case of the presence of any exculpatory evidence or doubt in the prosecution's
evidence, the doubt shall be resolved In favor of the child.

Section 47. Promulgation of Sentence. - If. After the trial, the court should find the child
in conflict with the law guilty beyond reasonable doubt of the offense charged, it shall
impose the proper penalty, including any civil liability which the child may have incurred,
and promulgate the sentence in accordance with Section 6, Rule 120 of the Revised Rules
if Criminal Procedure.

Section 48. Automatic Suspension of Sentence and Disposition Orders. - If the child is
found guilty of the offense charged, the court, instead of executing the judgments of
conviction, shall palce the child in conflict with the law under suspended sentence, without
need of application. Suspension of sentence can be availed of even if the child is already
eighteen years (18) of age or more but not above twenty-one (21) years old, at the time
of the pronouncement of guilt, without prejudice to the child's availing of other benefits
such as probation, if qualified, or adjustment of penalty, in interest of justice.

The benefits of the suspended sentence shall not apply to a child in conflict with the law
who has once enjoyed suspension of sentence, but shall nonetheless apply to one who is
convicted of an offense punishable by reclusion perpetua or life imprisonment pursuant to
the provisions of Rep. Act No. 9346 prohibiting the imposition of the death penalty and in
lieu thereof, reclusion perpetua, and after application of the privileged mitigating
circumstance of minority.

If the child in conflict with the law reaches eighteen (18) years of age while under
suspended sentence, the court shall determine whether to discharge the child in
accordance with the provisions of Republic Act 9344, or to extend the suspended sentence
for a maximum period of up to the time the child reaches twenty-one (21) years of age,
or to order service of sentence.

Section 49. Disposition Conference. -In case of suspended sentence, the court shall set
the case for disposition conference within fifteen (15) days from the promulgation of
sentence with notice to the social worker of the court, the child and the parents or guardian
ad litem of the child and the child's counsel , the victim and counsel. At the conference,
the court shall proceed to determine and issue any or a combination of the following
disposition measures best suited to the rehabilitation and welfare of the child:

(1) Care, guidance, and supervision of orders;

(2) Community service orders;

(3) Drug and alcohol treatment

(4) Participation in group counseling and similar activities; and

(5) Commitment to the Youth Rehabilitation Center of the Department of Social

Welfare and Development or other centers for children in conflict with the law
authorized by the Secretary of the Department of Social Welfare and Development.

Section 50. Compliance with the Disposition Measures. - The social worker assigned to
the child shall monitor the compliance by the child in conflict with the law with the
disposition measures and shall submit regularly to the court a status and progress report
on the matter. The court may set a conference for the evaluation of such report in the
presence, if practicable, of the child, the parents or guardian, counsel and other persons
whose presence may be deemed necessary.

Section 51. Discharge of Child Subject of Disposition Measure. - Upon the

recommendation of the social worker assigned to the child, the court shall, after due notice
to all parties and hearing, dismiss the case against the child who has been issued
disposition measures, even before reaching eighteen(18) years of age, and order a final
discharge if it finds that the child has been rehabilitated and has shown the capability to
be a useful member of the community.

If the court finds that the child (a) is incorrigible; or (b) has not shown the capability of
becoming a useful member of society; or (c) has willfully failed to comply with the
conditions of the disposition or rehabilitation program; (d) or the child's continued stay in
the training institution is not in the child's best interest, the child shall be brought before
the court for execution of the judgment.

The final release of the child shall not extinguish the civil liability. The parents and other
persons exercising parental authority over the child shall be civilly liable for the injuries
and damages caused by the acts or omissions of the child living in their company and
under the parental authority subject to the appropriate defenses provided by law.

Section 52. Probation as an Alternative to Imprisonment. - The court may, after it shall
have convicted and sentenced a child in conflict with the law and upon application at any
time, place the child on probation if qualified, in lieu of service of sentence taking into
account the best interest of the child.

Section 53. Credit in Service of Sentence. - The child in conflict with the law who has
undergone preventive imprisonment shall be credited in the service of the sentence
consisting of deprivation of liberty, with the full time during which the child has undergone
preventive imprisonment, if the child agrees voluntarily in writing to abide by the same or
similar disciplinary rules imposed upon convicted prisoners, except in any of the following
cases:

(1) When the child is a recidivist or has been convicted twice or more times of any
crime; or

(2) When upon being summoned for execution of sentence, the child failed to
surrender voluntarily.

A child who does not agree to the same disciplinary rules imposed upon convicted
prisoners shall be credited in the service of the sentence with four-fifths of the time during
which the child has undergone preventive imprisonment.
Whenever the child has undergone preventive imprisonment for a period equal to or more
than the possible maximum imprisonment of the offense charged to which the child may
be sentenced and the case is not yet terminated, the child shall be released immediately
without prejudice to the continuation of any on-going intervention program, and the trial
thereof or the proceeding on appeal, if the same is under review. In case the maximum
penalty to which the child may be sentenced is destierro, the child shall be released after
thirty (30) days of preventive imprisonment.

Any form of physical restraint imposed on the child in conflict with the law, including
community service and commitment to a rehabilitation center, shall be considered
preventive imprisonment.

Section 54. Confidentiality of Proceedings and Record. - All proceedings and records
involving children in conflict with the law from initial contact until final disposition of the
case by the court shall be considered privileged and confidential. The public may be
excluded from the proceedings and pursuant to the provisions of Section 31 of the Rule
on Examination of a Child Witness, the records shall not be disclosed directly or indirectly
to anyone by any of the parties or the participants in the proceeding for any purpose
whatsoever, except to determine if the child may have the sentence suspended under
Section 38 of this Rule or if the child may be granted probation under the Probation Law,
or to enforce the civil liability imposed in the criminal action.

The court shall employ other measures to protect confidentiality of proceedings including
non-disclosure of records to the media, the maintenance of a separate police blotter for
cases involving children in conflict with the law and the adoption of a system of coding to
conceal material information, which lead to the child's identity. The records of children in
conflict with the law shall not be used in subsequent proceedings or cases involving the
same offender as an adult.

Section 55. Non-liability for Perjury or Concealment or Misrepresentation. - Any person

who has been in conflict with the law as a child shall not be held guilty of perjury or of
concealment or misrepresentation by reason of failure to acknowledge the case or recite
any fact related thereto in response to any inquiry.

Section 56. Sealing of Records. - The court, motu proprio or on application of a person
who has been adjudge a child in conflict with the law, or if still a minor, on motion of the
parents or legal guardian, shall, upon notice to the prosecution and after hearing, order
the sealing of the records of the case if it finds that two (2) years have elapsed since the
final discharged of the child after suspension of sentence or probation, or from the date
of the closure order and the child has no pending case of an offense or a crime involving
moral turpitude.

Upon entry of the order, the case shall be treated as if it never occurred. All index
references shall be deleted and in case of inquiry, the court, prosecution, law enforcement
officers and all other offices and agencies that dealt with the case shall reply that no record
exist with respect to the child concerned. Copies of the order shall be sent to these officials
and agencies named in the order. Inspection of the sealed records thereafter may be
permitted only by order of the court upon petition of the child who is the subject of the
records or of other proper parties.

This procedure shall be without prejudice to the rule on destruction of video or audio tapes
under Section 31 of the Rule on the Examination of Child Witness.

Section 57. Prohibition of Labeling. - In the conduct of proceedings from initial contact
with the child in conflict with the law to the final disposition of the case, there shall be no
branding or labeling of the child as a young criminal, juvenile delinquent, prostitute,
vagrant, or attaching to the child in any manner any derogatory description or name.
Likewise, no discriminatory statements, conduct and practices shall be allowed,
particularly with respect to the child's social or economic status, physical or mental
disability or ethnic origin.
Section 58. Contempt Powers. - A person who directly or indirectly disobeys any order
of the court or obstruct or interferes with its proceedings or the enforcement of its orders
issued under this Rule shall be liable for contempt of court.

Section 59. Effectivity. - This Rule as revised shall take effect on December 1, 2009 after
its publication in two (2) newspapers of general circulation not later than November 27,
2009.
G.R. No. 182239 March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
HERMIE M. JACINTO, Accused-Appellant.

DECISION

PEREZ, J.:

Once again, we recite the time-honored principle that the defense of alibi cannot prevail
over the victim’s positive identification of the accused as the perpetrator of the crime.1 For
it to prosper, the court must be convinced that there was physical impossibility on the
part of the accused to have been at the locus criminis at the time of the commission of
the crime.2

Nevertheless, a child in conflict with the law, whose judgment of conviction has become
final and executory only after his disqualification from availing of the benefits of suspended
sentence on the ground that he/she has exceeded the age limit of twenty-one (21) years,
shall still be entitled to the right to restoration, rehabilitation, and reintegration in
accordance with Republic Act No. 9344, otherwise known as "An Act Establishing a
Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and
Welfare Council under the Department of Justice, Appropriating Funds Therefor and for
Other Purposes."

Convicted for the rape of five-year-old AAA,3 appellant Hermie M. Jacinto seeks before
this Court the reversal of the judgment of his conviction.4

The Facts

In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed
as Criminal Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE
allegedly committed as follows:

That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more
or less, at barangay xxx, municipality of xxx, province of xxx and within the jurisdiction
of this Honorable Court, [Hermie M. Jacinto], with lewd design did then and there willfully,
unlawfully and feloniously had carnal knowledge with one AAA, a five-year old minor child.

CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim

being only five years old.7

On 15 July 2003, appellant entered a plea of not guilty.8 During pre-trial,9 the defense
admitted the existence of the following documents: (1) birth certificate of AAA, showing
that she was born on 3 December 1997; (2) police blotter entry on the rape incident; and
(3) medical certificate, upon presentation of the original or upon identification thereof by
the physician.

Trial ensued with the prosecution and the defense presenting witnesses to prove their
respective versions of the story.

Evidence for the Prosecution

The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may
be summarized in the following manner:

FFF and appellant have been neighbors since they were born. FFF’s house is along the
road. That of appellant lies at the back approximately 80 meters from FFF. To access the
road, appellant has to pass by FFF’s house, the frequency of which the latter describes to
be "every minute [and] every hour." Also, appellant often visits FFF because they were
close friends. He bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time
– playing at the basketball court near her house, fetching water, and passing by her house
on his way to the road. She and appellant used to be friends until the incident.14

At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old
daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When
CCC returned without AAA, FFF was not alarmed. He thought she was watching television
at the house of her aunt Rita Lingcay [Rita].15

Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay
Rum.16 At the store, he saw appellant place AAA on his lap.17 He was wearing sleeveless
shirt and a pair of short pants.18 All of them left the store at the same time.19 Julito
proceeded to the house of Rita to watch television, while appellant, who held the hand of
AAA, went towards the direction of the "lower area or place."20

AAA recalled that appellant was wearing a chaleko (sando) and a pair of short
pants21 when he held her hand while on the road near the store.22 They walked towards
the rice field near the house of spouses Alejandro and Gloria Perocho [the
Perochos].23 There he made her lie down on harrowed ground, removed her panty and
boxed her on the chest.24 Already half-naked from waist down,25 he mounted her, and,
while her legs were pushed apart, pushed his penis into her vagina and made a push and
pull movement.26 She felt pain and cried.27 Afterwards, appellant left and proceeded to
the Perochos.28 She, in turn, went straight home crying.29

FFF heard AAA crying and calling his name from downstairs.30 She was without
slippers.31 He found her face greasy.32 There was mud on her head and blood was oozing
from the back of her head.33 He checked for any injury and found on her neck a contusion
that was already turning black.34 She had no underwear on and he saw white substance
and mud on her vagina.35 AAA told him that appellant brought her from the store36 to the
grassy area at the back of the house of the Perochos;37 that he threw away her pair of
slippers, removed her panty, choked her and boxed her breast;38 and that he proceeded
thereafter to the Perochos.39

True enough, FFF found appellant at the house of the Perochos.40 He asked the appellant
what he did to AAA.41Appellant replied that he was asked to buy rum at the store and that
AAA followed him.42 FFF went home to check on his daughter,43 afterwhich, he went back
to appellant, asked again,44 and boxed him.45

Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television
at the house of Rita.46AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied
her, embraced her, and asked what happened to her, to which she replied that appellant
raped her.49 Julito left and found appellant at the Perochos.50 Julito asked appellant,
"Bads, did you really rape the child, the daughter of [MMM]?" but the latter ignored his
question.51Appellant’s aunt, Gloria, told appellant that the policemen were coming to
which the appellant responded, "Wait a minute because I will wash the dirt of my elbow
(sic) and my knees."52 Julito did found the elbows and knees of appellant with dirt.53

On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health
center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical
certificate56 dated 29 January 2003. It reads:

Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

2. Petechial hemorrhages on both per-orbital areas.

3. Hematoma over the left upper arm, lateral area

4. Hematoma over the upper anterior chest wall, midclavicular line

 5. Abrasion over the posterior trunk, paravertebral area

6. Genital and peri-anal area soiled with debris and whitish mucoid-like material

7. Introitus is erythematous with minimal bleeding

8. Hymenal lacerations at the 5 o’clock and 9 o’clock position

Impression

MULTIPLE SOFT TISSUE INJURIES

HYMENAL LACERATIONS

Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination
at the provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical
Officer III of the provincial hospital, attended to her and issued a medico-legal certificate
dated 29 January 2003,58 the pertinent portion of which reads:

P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7
there is no bleeding in this time of examination. (sic)59

Evidence for the Defense

Interposing the defense of alibi, appellant gave a different version of the story. To
corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness
stand to affirm that he was at the Perochos at the time of the commission of the
crime.60 Luzvilla even went further to state that she actually saw Julito, not appellant, pick
up AAA on the road.61 In addition, Antonia Perocho [Antonia], sister-in-law of appellant’s
aunt, Gloria,62 testified on the behavior of Julito after the rape incident was revealed.63

Appellant claimed that he lives with his aunt, not with his parents whose house stands at
the back of FFF’s house.64He denied that there was a need to pass by the house of FFF in
order to access the road or to fetch water.65 He, however, admitted that he occasionally
worked for FFF,66 and whenever he was asked to buy something from the store, AAA
always approached him.67

At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to
attend a birthday party. At 6:08 in the evening, while the visitors, including appellant and
his uncle Alejandro Perocho [Alejandro], were gathered together in a drinking session,
appellant’s uncle sent him to the store to buy Tanduay Rum. Since the store is only about
20 meters from the house, he was able to return after three (3) minutes. He was certain
of the time because he had a watch .68

Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house
attending the birthday party; and that appellant went out between 6 and 7 in the evening
to buy a bottle of Tanduay from the store. She recalled that appellant was back around
five (5) minutes later. She also observed that appellant’s white shorts and white sleeveless
shirt were clean.69

At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen
having a drink with his uncle Alejandro and the rest of the visitors. 71 She went out to
relieve herself at the side of the tree beside the road next to the house of the
Perochos.72 From where she was, she saw Julito, who was wearing black short pants and
black T-shirt, carry AAA.73 AAA’s face was covered and she was wiggling.74 This did not
alarm her because she thought it was just a game.75 Meanwhile, appellant was still in the
kitchen when she returned.76 Around three (3) minutes later, Luzvilla saw Julito, now in a
white T-shirt,77 running towards the house of Rita.78 AAA was slowly following
behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA and asked
what the appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and
testified that appellant was twice boxed by FFF. According to her, FFF tapped the left
shoulder of the appellant, boxed him, and left. FFF came in the second time and again
boxed appellant. This time, he had a bolo pointed at appellant. Appellant’s uncle Alejandro,
a barangay councilor, and another Civilian Voluntary Organization (CVO) member
admonished FFF.83

On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the
television along with other people at the house of Rita. Around 7:10, Julito, who was
wearing only a pair of black short pants without a shirt on, entered the house drunk. He
paced back and forth. After 10 minutes, AAA came in crying. Julito tightly embraced AAA
and asked her what happened. AAA did not answer. Upon Antonia’s advice, Julito released
her and went out of the house.84

Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a
finger at him, brandished a bolo, and accused him of molesting AAA. FFF left but returned
at around 8 o’clock in the evening. This time, he boxed appellant and asked again why he
molested his daughter.85

On 26 March 2004, the Regional Trial Court rendered its decision,86 the dispositive portion
of which reads:

WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay
[AAA] P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs 87

The defense moved to reopen trial for reception of newly discovered evidence stating that
appellant was apparently born on 1 March 1985 and that he was only seventeen (17)
years old when the crime was committed on 28 January 2003.88 The trial court appreciated
the evidence and reduced the penalty from death to reclusion perpetua.89 Thus:

WHEREFORE, the judgment of the court imposing the death penalty upon the accused is
amended in order to consider the privileged mitigating circumstance of minority. The
penalty impos[a]ble upon the accused, therefore[,] is reduced to reclusion perpetua. xxx

Appealed to this Court, the case was transferred to the Court of Appeals for its disposition
in view of the ruling in People v. Mateo and the Internal Rules of the Supreme
Court allowing an intermediate review by the Court of Appeals of cases where the penalty
imposed is death, reclusion perpetua, or life imprisonment.90

On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with
the following MODIFICATIONS:

xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17)
and four (4) months of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is
ordered to indemnify the victim in the sum of P75,000.00 as civil indemnity, P75,000.00
as moral damages, and P25,000.00 as exemplary damages and to pay the costs.91

On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective
supplemental briefs.93 Both parties manifested that they have exhaustively discussed their
positions in their respective briefs and would no longer file any supplement.94

Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED
IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are
capable of two or more reasonable explanations, one of which is consistent with the
innocence of the accused and the other with his guilt, then the evidence does not pass the
test of moral certainty and will not suffice to support a conviction."96
 Our Ruling

We sustain the judgment of conviction.

In the determination of the innocence or guilt of a person accused of rape, we consider

the three well-entrenched principles:

(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult
for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the
crime of rape in which only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits, and cannot be allowed to draw strength
from the weakness of the evidence for the defense.97

Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient
to convict the accused.98More so, when the testimony is supported by the medico-legal
findings of the examining physician.99

Further, the defense of alibi cannot prevail over the victim’s positive identification of the
perpetrator of the crime,100except when it is established that it was physically impossible
for the accused to have been at the locus criminis at the time of the commission of the
crime.101

A man commits rape by having carnal knowledge of a child under twelve (12) years of
age even in the absence of any of the following circumstances: (a) through force, threat
or intimidation; (b) when the offended party is deprived of reason or otherwise
unconscious; or (c) by means of fraudulent machination or grave abuse of authority.102

That the crime of rape has been committed is certain. The vivid narration of the acts
culminating in the insertion of appellant’s organ into the vagina of five-year-old AAA and
the medical findings of the physicians sufficiently proved such fact.

AAA testified:

PROS. OMANDAM:

xxxx

Q You said Hermie laid you on the ground, removed your panty and boxed you,
what else did he do to you?

A He mounted me.

Q When Hermie mounted you, was he facing you?

A Yes.

Q When he mounted you what did he do, did he move?

A He moved his ass, he made a push and pull movement.

Q When he made a push and pull movement, how were your legs positioned?

A They were apart.

Q Who pushed them apart?

A Hermie.

Q Did Hermie push anything at you?

 A Yes.

Q What was that?

A His penis.

Q Where did he push his penis?

A To my vagina.

Q Was it painful?

A Yes.

Q What was painful?

A My vagina.

Q Did you cry?

A Yes.103

The straightforward and consistent answers to the questions, which were phrased and re-
phrased in order to test that AAA well understood the information elicited from her, said
it all – she had been raped. When a woman, more so a minor, says so, she says in effect
all that is essential to show that rape was committed.104 Significantly, youth and
immaturity are normally badges of truth and honesty.105

Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the
hymenal lacerations at 5 o’clock and 9 o’clock positions could have been caused by the
penetration of an object; that the redness of the introitus could have been "the result of
the repeated battering of the object;" and that such object could have been an erect male
organ.107

The credible testimony of AAA corroborated by the physician’s finding of penetration

conclusively established the essential requisite of carnal knowledge.108

II

The real identity of the assailant and the whereabouts of the appellant at the time of the
commission of the crime are now in dispute.

The defense would want us to believe that it was Julito who defiled AAA, and that appellant
was elsewhere when the crime was committed.109

We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a
good look at him during the commission of the crime.110 AAA had known appellant all her
life. Moreover, appellant and AAA even walked together from the road near the store to
the situs criminus111 that it would be impossible for the child not to recognize the man
who held her hand and led her all the way to the rice field.

We see no reason to disturb the findings of the trial court on the unwavering testimony of
AAA.

The certainty of the child, unusually intelligent for one so young, that it was accused,
whom she called "kuya" and who used to play basketball and fetch water near their house,
and who was wearing a sleeveless shirt and shorts at the time he raped her, was
convincing and persuasive. The defense attempted to impute the crime to someone else
– one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate,
asserting that it was accused who is younger, and not Julito, who is older, who molested
her.112

In a long line of cases, this Court has consistently ruled that the determination by the trial
court of the credibility of the witnesses deserves full weight and respect considering that
it has "the opportunity to observe the witnesses’ manner of testifying, their furtive
glances, calmness, sighs and the scant or full realization of their oath," 113 unless it is
shown that material facts and circumstances have been "ignored, overlooked,
misconstrued, or misinterpreted."114

Further, as correctly observed by the trial court:

xxx His and his witness’ attempt to throw the court off the track by imputing the crime to
someone else is xxx a vain exercise in view of the private complainant’s positive
identification of accused and other corroborative circumstances. Accused also admitted
that on the same evening, Julito Apiki, the supposed real culprit, asked him "What is this
incident, Pare?", thus corroborating the latter’s testimony that he confronted accused after
hearing of the incident from the child."115

On the other hand, we cannot agree with the appellant that the trial court erred in finding
his denial and alibi weak despite the presentation of witnesses to corroborate his
testimony. Glaring inconsistencies were all over their respective testimonies that even
destroyed the credibility of the appellant’s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy
Tanduay; that he gave the bottle to his uncle; and that they had already been drinking
long before he bought Tanduay at the store.

This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On
cross-examination, she revealed that her husband was not around before, during, and
after the rape incident because he was then at work.116 He arrived from work only after
FFF came to their house for the second time and boxed appellant. 117 It was actually the
fish vendor, not her husband, who asked appellant to buy Tanduay.118 Further, the
drinking session started only after the appellant’s errand to the store.119

Neither was the testimony of Luzvilla credible enough to deserve consideration.

Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is
contrary to Gloria’s statement that her husband was at work.

Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia

Perocho. Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim
that Julito wore a white shirt on his way to the house of Rita. In addition, while both the
prosecution, as testified to by AAA and Julito, and the defense, as testified to by Gloria,
were consistent in saying that appellant wore a sleeveless shirt, Luzvilla’s recollection
differ in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a
short-sleeved shirt.

Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3)
minutes after she returned to the Perochos at 6:38 in the evening, Antonia recalled that
AAA arrived at the house of Rita at 7:30. In this respect, we find the trial court’s
appreciation in order. Thus:

xxx. The child declared that after being raped, she went straight home, crying, to tell her
father that Hermie had raped her. She did not first drop into the house of Lita Lingkay to
cry among strangers who were watching TV, as Luzvilla Balucan would have the court
believe. When the child was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla
Balucan, it was only later, after she had been brought there by her mother Brenda so that
Lita Lingkay could take a look at her ˗ just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same
having been offered preferably by disinterested witnesses. The defense failed thuswise.
Its witnesses cannot qualify as such, "they being related or were one way or another
linked to each other."121

Even assuming for the sake of argument that we consider the corroborations on his
whereabouts, still, the defense of alibi cannot prosper.

We reiterate, time and again, that the court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of the commission
of the crime.122

Physical impossibility refers to distance and the facility of access between the situs
criminis and the location of the accused when the crime was committed. He must
demonstrate that he was so far away and could not have been physically present at the
scene of the crime and its immediate vicinity when the crime was committed.123

In People v. Paraiso,124 the distance of two thousand meters from the place of the
commission of the crime was considered not physically impossible to reach in less than an
hour even by foot.125 Inasmuch as it would take the accused not more than five minutes
to rape the victim, this Court disregarded the testimony of the defense witness attesting
that the accused was fast asleep when she left to gather bamboo trees and returned
several hours after. She could have merely presumed that the accused slept all
throughout.126

In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the
appellant that he was in their company at the time of the commission of the crime were
likewise disregarded by this Court in the following manner:

Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s
sister-in-law and co-worker, in unison, vouched for the appellant’s physical presence in
the fishpond at the time Rachel was raped. It is, however, an established fact that the
appellant’s house where the rape occurred, was a stone’s throw away from the
fishpond. Their claim that the appellant never left their sight the entire
afternoon of December 4, 1997 is unacceptable. It was impossible for Marites to have
kept an eye on the appellant for almost four hours, since she testified that she, too, was
very much occupied with her task of counting and recording the fishes being harvested.
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not
have focused his entire attention solely on the appellant. It is, therefore, not farfetched
that the appellant easily sneaked out unnoticed, and along the way inveigled the
victim, brought her inside his house and ravished her, then returned to the
fishpond as if he never left.128 (Emphasis supplied.)1avvphi1

As in the cases above cited, the claim of the defense witnesses that appellant never left
their sight, save from the 5-minute errand to the store, is contrary to ordinary human
experience. Moreover, considering that the farmland where the crime was committed is
just behind the house of the Perochos, it would take appellant only a few minutes to bring
AAA from the road near the store next to the Perochos down the farmland and
consummate the crime. As correctly pointed out by the Court of Appeals, appellant could
have committed the rape after buying the bottle of Tanduay and immediately returned to
his uncle’s house.129 Unfortunately, the testimonies of his corroborating witnesses even
bolstered the fact that he was within the immediate vicinity of the scene of the crime.130

Clearly, the defense failed to prove that it was physically impossible for appellant to have
been at the time and place of the commission of the crime.

All considered, we find that the prosecution has sufficiently established the guilt of the
appellant beyond reasonable doubt.
 III

In the determination of the imposable penalty, the Court of Appeals correctly considered
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission
of the crime three (3) years before it was enacted on 28 April 2006.

We recognize its retroactive application following the rationale elucidated in People v.

Sarcia:131

[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those
who have been convicted and are serving sentence at the time of the effectivity of this
said Act, and who were below the age of 18 years at the time of the commission of the
offense. With more reason, the Act should apply to this case wherein the
conviction by the lower court is still under review.133 (Emphasis supplied.)

Criminal Liability; Imposable Penalty

Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below
eighteen (18) years of age from criminal liability, unless the child is found to have acted
with discernment, in which case, "the appropriate proceedings" in accordance with the Act
shall be observed.134

We determine discernment in this wise:

Discernment is that mental capacity of a minor to fully appreciate the consequences of his
unlawful act.135 Such capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in each case.136

xxx The surrounding circumstances must demonstrate that the minor knew what he was
doing and that it was wrong.137 Such circumstance includes the gruesome nature of the
crime and the minor’s cunning and shrewdness.138

In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated
and dark place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim
xxx, to weaken her defense" are indicative of then seventeen (17) year-old appellant’s
mental capacity to fully understand the consequences of his unlawful action.139

Nonetheless, the corresponding imposable penalty should be modified.

The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering
that she was only five (5) years old when appellant defiled her on 28 January 2003, the
law prescribing the death penalty when rape is committed against a child below seven (7)
years old141 applies.

The following, however, calls for the reduction of the penalty: (1) the prohibition against
the imposition of the penalty of death in accordance with Republic Act No. 9346; 142 and
(2) the privileged mitigating circumstance of minority of the appellant, which has the effect
of reducing the penalty one degree lower than that prescribed by law, pursuant to Article
68 of the Revised Penal Code.143

Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of
penalties provided in Article 71 of the Revised Penal Code.145 Consequently, in its
appreciation of the privileged mitigating circumstance of minority of appellant, it lowered
the penalty one degree from reclusion perpetua and sentenced appellant to suffer the
indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision
mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal,
in its medium period, as maximum.146

We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J.
Leonardo-de Castro, clarified:

Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years,
the penalty next lower than that prescribed by law shall be imposed, but always in the
proper period. However, for purposes of determining the proper penalty because
of the privileged mitigating circumstance of minority, the penalty of death is still
the penalty to be reckoned with. Thus, the proper imposable penalty for the accused-
appellant is reclusion perpetua.148 (Emphasis supplied.)

Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability

We have consistently ruled that:

The litmus test xxx in the determination of the civil indemnity is the heinous character of
the crime committed, which would have warranted the imposition of the death penalty,
regardless of whether the penalty actually imposed is reduced to reclusion perpetua.149

Likewise, the fact that the offender was still a minor at the time he committed the crime
has no bearing on the gravity and extent of injury suffered by the victim and her
family.150 The respective awards of civil indemnity and moral damages in the amount of
₱75,000.00 each are, therefore, proper.151

Accordingly, despite the presence of the privileged mitigating circumstance of minority

which effectively lowered the penalty by one degree, we affirm the damages awarded by
the Court of Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as
moral damages. And, consistent with prevailing jurisprudence,152 the amount of
exemplary damages should be increased from ₱25,000.00 to ₱30,000.00.

Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of

the Period of Suspension of Sentence

Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the
law notwithstanding that he/she has reached the age of majority at the time the judgment
of conviction is pronounced. Thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18)
years of age at the time of the commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil liability which may have resulted
from the offense committed. However, instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence shall still be
applied even if the juvenile is already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt. (Emphasis supplied.)

Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court
of Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as
amended,154 the aforestated provision does not apply to one who has been convicted of
an offense punishable by death, reclusion perpetua or life imprisonment.155

Meanwhile, on 10 September 2009, this Court promulgated the decision

in Sarcia,156 overturning the ruling in Gubaton. Thus:

The xxx provision makes no distinction as to the nature of the offense committed by the
child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D.
and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not
apply to a child in conflict with the law if, among others, he/she has been convicted of an
offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec.
38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction
that when the law does not distinguish, we should not distinguish. Since R.A. No. 9344
does not distinguish between a minor who has been convicted of a capital offense and
another who has been convicted of a lesser offense, the Court should also not distinguish
and should apply the automatic suspension of sentence to a child in conflict with the law
who has been found guilty of a heinous crime.157

The legislative intent reflected in the Senate deliberations 158 on Senate Bill No. 1402
(Juvenile Justice and Delinquency Prevention Act of 2005) further strengthened the new
position of this Court to cover heinous crimes in the application of the provision on the
automatic suspension of sentence of a child in conflict with the law. The pertinent portion
of the deliberation reads:

If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or
may have committed a serious offense, and may have acted with discernment, then the
child could be recommended by the Department of Social Welfare and Development
(DSWD), by the Local Council for the Protection of Children (LCPC), or by [Senator Miriam
Defensor-Santiago’s] proposed Office of Juvenile Welfare and Restoration to go through a
judicial proceeding; but the welfare, best interests, and restoration of the child should still
be a primordial or primary consideration. Even in heinous crimes, the intention should still
be the child’s restoration, rehabilitation and reintegration. xxx (Italics supplied
in Sarcia.)159

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in
Conflict with the Law,which reflected the same position.160

These developments notwithstanding, we find that the benefits of a suspended sentence

can no longer apply to appellant. The suspension of sentence lasts only until the child in
conflict with the law reaches the maximum age of twenty-one (21) years.161 Section
40162 of the law and Section 48163 of the Rule are clear on the matter. Unfortunately,
appellant is now twenty-five (25) years old.

Be that as it may, to give meaning to the legislative intent of the Act, the promotion of
the welfare of a child in conflict with the law should extend even to one who has exceeded
the age limit of twenty-one (21) years, so long as he/she committed the crime when
he/she was still a child. The offender shall be entitled to the right to restoration,
rehabilitation and reintegration in accordance with the Act in order that he/she is given
the chance to live a normal life and become a productive member of the community. The
age of the child in conflict with the law at the time of the promulgation of the judgment of
conviction is not material. What matters is that the offender committed the offense when
he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in
accordance with Sec. 51 of Republic Act No. 9344.164

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training
Facilities. – A child in conflict with the law may, after conviction and upon order of the
court, be made to serve his/her sentence, in lieu of confinement in a regular penal
institution, in an agricultural camp and other training facilities that may be established,
maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia,165 the case shall be remanded to the court of
origin to effect appellant’s confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR
HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of
qualified rape is AFFIRMED with the following MODIFICATIONS: (1) the death penalty
imposed on the appellant is reduced to reclusion perpetua; and (2) appellant is ordered
to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages. The case is hereby REMANDED to the court of
origin for its appropriate action in accordance with Section 51 of Republic Act No. 9344.
SO ORDERED.
G.R. No. 75256 January 26, 1989

JOHN PHILIP GUEVARRA, petitioner,

vs.
HONORABLE IGNACIO ALMODOVAR, respondent.

Teresita Dy-Liacco and Roberto Madrid for petitioner.

PARAS, J.:

Presented before Us is a special civil action for certiorari against the Honorable Judge
Ignacio Almodovar of the City Court of Legaspi, Branch 1, Legaspi City, raising beautiful
questions of law which We are tasked to resolve. Considering the issues and arguments
raised by petitioner, We impleaded the People of the Philippines as party respondents
herein in a resolution dated 17 September 1986 (p. 41, Rollo).

The relevant facts gathered from the records are as follows:

Petitioner John Philip Guevarra, then 11 years old, was playing with his best friend Teodoro
Almine, Jr. and three other children in their backyard in the morning of 29 October 1984.
They were target-shooting a bottle cap (tansan) placed around fifteen (15) to twenty (20)
meters away with an air rifle borrowed from a neighbor. In the course of their game,
Teodoro was hit by a pellet on his left collar bone which caused his unfortunate death.

After conduct a preliminary investigation, the examining Fiscal exculpated petitioner due
to his age and because the unfortunate occurrence appeared to be an accident. The
victim's parents appealed to the Ministry of Justice, which ordered the Fiscal to file a case
against petitioner for Homicide through reckless Imprudence. The information dated 9
October 1985 was consequently filed, which narrated in part:

. . . the above-named accused, who is over 9 years but below 15 years of age
and acting with discernment, did then and there, without taking the necessary
precautions to prevent and/or avoid accident or injuries to persons, willfully,
unlawfully and feloniously operate and cause to be fired, in a reckless and
imprudent manner, an air rifle with .22 caliber bore with rifling, oxygen and
bolt operated thereby hitting as a result of said carelessness and imprudence
one TEODORICO PABLO ALMINE at the left side of the body with its pellet,
causing injuries which directly caused his untimely death; . . . (p. 8, Rollo)

On 25 October 1985, petitioner moved to quash the said information on the following
grounds:

THAT THE FACTS CHARGED DO NOT CONSTITUTE OFFENSE.

II

THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF TRUE WOULD

CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION.

III

THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER THE OFFENSE

CHARGED AND THE PERSON OF THE DEFENDANT. (p. 9, Rollo)

This motion, in an Order dated 4 April 1986, was denied with respect to the first and third
grounds relied upon. However, the resolution of the second ground was deferred until
evidence shall have been presented during trial.
On 26 July 1986, this present petition for certiorari was filed, raising two (2) issues, to
wit:

WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED WITH THE
CRIME OF HOMICIDE THRU RECKLESS IMPRUDENCE, AND

II

WHETHER THE COURT HAD JURISDICTION OVER THE CASE

NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU THE BARANGAY
LUPON. (Petition, p. 3, Rollo)

Going through the written arguments of the parties, the surfacing of a corollary
controversy with respect to the first issue raised is evident, that is, whether the term
"discernment", as used in Article 12(3) of the Revised Penal Code (RPC) is synonymous
with "intent." It is the position of the petitioner that "discernment" connotes 'intent' (p.
96, Rollo), invoking the unreported case of People vs. Nieto, G.R. No. 11965, 30 April
1958. In that case We held that the allegation of "with intent to kill . . ." amply meets the
requirement that discernment should be alleged when the accused is a minor between 9
and 15 years old. Petitioner completes his syllogism in saying that:

If discernment is the equivalent of 'with intent', then the allegation in the

information that the accused acted with discernment and willfully unlawfully,
and feloniously, operate or cause to be fired in a reckless and imprudent
manner an air rifle .22 caliber' is an inherent contradiction tantamount to
failure of the information to allege a cause of action or constitute a legal
excuse or exception. (Memorandum for Petitioner, p. 97, Rollo)

If petitioner's argument is correct, then no minor between the ages of 9 and 15 may be
convicted of a quasi-offense under Article 265 of the RPC.

On the contrary, the Solicitor General insists that discernment and intent are two different
concepts. We agree with the Solicitor General's view; the two terms should not be
confused.

The word "intent" has been defined as

(a) design; a determination to do a certain things; an aim; the purpose of the

mind, including such knowledge as is essential to such intent;. . .; the design
resolve, or determination with which a person acts.' (46 CJS Intent p. 1103.)

It is this intent which comprises the third element of dolo as a means of committing a
felony, freedom and intelligence being the other two. On the other hand, We have defined
the term discernment, as used in Article 12(3) of the RPC, in the old case of People vs.
Doquena, 68 Phil. 580(1939), in this wise:

The discernment that constitutes an exception to the exemption from criminal

liability of a minor under fifteen years of age but over nine, who commits an
act prohibited by law, is his mental capacity to understand the difference
between right and wrong . . . (Emphasis supplied) p. 583

From the foregoing, it is clear that the terms "intent" and "discernment" convey two
distinct thoughts. While both are products of the mental processes within a person, the
former refers to the desired of one's act while the latter relates to the moral significance
that person ascribes to the said act. Hence a person may not intend to shoot another but
may be aware of the consequences of his negligent act which may cause injury to the
same person in negligently handling an air rifle. It is not connect, therefore, to argue, as
petitioner does, that since a minor above nine years of age but below fifteen acted with
discernment, then he intended such act to be done. He may negligently shoot his friend,
thus did not intend to shoot him, and at the same time recognize the undesirable result
of his negligence.

In further outlining the distinction between the words "intent" and "discernment," it is
worthy to note the basic reason behind the enactment of the exempting circumstances
embodied in Article 12 of the RPC; the complete absence of intelligence, freedom of action,
or intent, or on the absence of negligence on the part of the accused. 1 In expounding on
intelligence as the second element of dolus, Albert 2 has stated:

The second element of dolus is intelligence; without this power, necessary to

determine the morality of human acts to distinguish a licit from an illicit act, no
crime can exist, and because ... the infant 3 (has) no intelligence, the law
exempts (him) from criminal liability. (Emphasis supplied)

lt is for this reason, therefore, why minors nine years of age and below are not capable of
performing a criminal act. On the other hand, minors above nine years of appeal but below
fifteen are not absolutely exempt. However, they are presumed to be without criminal
capacity, but which presumption may be rebutted if it could be proven that they were
"capable of appreciating the nature and criminality of the act, that is, that (they) acted
with discernment. " 4 The preceding discussion shows that "intelligence" as an element
of dolo actually embraces the concept of discernment as used in Article 12 of the RPC and
as defined in the aforecited case of People vs. Doquena, supra. It could not therefore be
argued that discernment is equivalent or connotes 'intent' for they refer to two different
concepts. Intelligence, which includes discernment, is a distinct element of dolo as a
means of committing an offense.

In evaluating felonies committed by means of culpa, three (3) elements are indispensable,
namely, intelligence, freedom of action, and negligence. Obviously, intent is wanting in
such felonies. However, intelligence remains as an essential element, hence, it is
necessary that a minor above nine but below fifteen years of age be possessed with
intelligence in committing a negligent act which results in a quasi-offense. For him to be
criminally liable, he must discern the rightness or wrongness of the effects of his negligent
act. Indeed, a minor over nine years of age but below fifteen may be held liable for a
quasi-offense under Article 365 of the RPC. A reading of the said Article would reveal such
fact as it starts off with the phrase "Any person. . ." without any distinction or exception
made. Ubi lex non distinquit nec nos distinguere debemos.

In his last attempt to justify his position equating the words "intent" and "discernment"
used under the law, he cites the case of People vs. Nieto, supra. However, petitioner failed
to present the qualifying sentence preceding the ruling he now invokes, which reads:

That requirement should be deemed amply met with the allegation in the
information that she. . ."with the intent to kill, did then and there wilfully,
criminally and feloniously push one Lolita Padilla . . ." into a deep place of the
Peñaranda River and as a consequence thereof Lolita Padilla got drowned and
died right then and there.' This allegation clearly conveys the Idea that she
knew what would be the consequence of her unlawful act of pushing her victim
into deep water and that she knew it to be wrong. (Emphasis supplied)

From the above, it is clear that We did not mean to equate the words "intent" and
"discernment." What We meant was that the combined effect of the words used in the
information is to express a knowledge, on the part of the accused Nieto, of the wrongness
or rightness of her act. Hence, petitioner may not validly contend that since the
information now in question alleged "discernment", it in effect alleged "intent." The former
may never embrace the Idea of the latter; the former expresses the thought of passivity
while the latter signifies activity.

Coming now to the second issue of jurisdiction, it is contended by the petitioner that the
case against him should have first been brought before the Lupong Tagapayapa pursuant
to Presidential Decree No. 1508, Section 2(3). He submits that, considering his entitlement
to a two-degree privileged mitigating circumstance due to his minority, P.D. 1508 applies
to his case because the penalty imposable is reduced to not higher than arresto
menor from an original arresto mayor maximum to prision correccional medium as
prescribed in Article 365 of the RPC. This is not correct. The jurisdiction of a court over a
criminal case is determined by the penalty imposable under the law for the offense and
not the penalty ultimately imposed (People vs. Caldito, 72 Phil. 263; People vs. Purisima,
69 SCRA 314; Dioquino vs. Cruz and People vs. Savellano, 116 SCRA 451). The same
principle applies in construing Section 2(3) of P.D. 1508, which states:

xxx xxx xxx

(3) Offense punishable by imprisonment exceeding 30 day , or a fine

exceeding P 200.00; ... (emphasis supplied)

Expounding on the above provision, a member of the committee that drafted P.D. 1508
has said:

The law says 'punishable,' not 'punished.' One should therefore consider the
penalty provided for by law or ordinance as distinguished from the penalty
actually imposed in particular cases after considering the attendant
circumstances affecting criminal liability. 5

The foregoing finds support in our jurisprudence as above cited. We therefore rule that,
in construing Section 2(3) of P.D. 1508, the penalty which the law defining the offense
attaches to the latter should be considered. Hence, any circumstance which may affect
criminal liability must not be considered.

The petitioner, in his arguments, asserts that since P.D. 1508 has not been complied with,
the trial court has no jurisdiction over the case. This erroneous perception has been
corrected long before. As intimated in the case of Royales vs. IAC, 127 SCRA 470, and
categorically stated in Ebol vs. Amin, 135 SCRA 438, P.D. 1508 is not jurisdictional.

WHEREFORE, PREMISES CONSIDERED, this petition is hereby DISMISSED for lack of merit
and the Temporary Restraining Order effective 17 September 1986 is LIFTED. Let this
case be REMANDED to the lower court for trial on the merits. No cost. SO ORDERED.