d2015member People v. Lizada (2003)Callejo, Sr. J.

Short version:Lizada is
being charged with 4 counts of raping his stepdaughter (first rape occurred
when she was about 11 yrs old). TC and CAfound him guilty. On appeal to the
SC, Lizada assails the information against him for violating Rule 110, Section
11 of the RevisedRules on CrimPro
because the phrase
on or about August 1998"stated in the information is too indefinite. SC says
the failure tospecify the exact date when it was committed does not make
the Information defective because the gravamen of rape is not thedate and
time of its commission, but the carnal knowledge under any of the
circumstances in RPC 335.Facts:

Lizada is charged with 4 counts of qualified rape, and meting on him the
death penalty for each count. (He is charged of raping a certain Analia Agoo
in August, September, October, and November of 1998)

The words used in the complaints were:

First:
sometime in August 1998

Second:
on or about September 15, 1998
Third:
on or about October 22, 1998
Fourth:
on or about November 5, 1998
The prosecution:

A couple in Bohol had 3 children, one of them being Analia (born 1985). They
separated and the wife left to settle inManila, took with her the kids, and
worked as a waitress.
1994: Wife met Lizada and lived together.
The wife put up a video shop in the house and sold Avon products door to
door. When she was out, her kids tended to thevideo shop.
1996: By this year, Analia was about 11 yrs old. One night, Lizada e
ntered Analias room and removed her clothes, had
intercourse with her, and threatened to kill her if she told anyone what
happened. This happened in less than an hour.This happened again the
following year.
And from 1996-98, Lizada sexually abused Analia twice a week.
1998: Lizada
, wearing only shorts, entered Analias room. Analia was not afraid because
her younger brother was just
around the house. However, Lizada was still able to have intercourse with
her.

The brother passed by Analias room and

saw Lizada on top of her. Lizada dismounted and berated the brother, told
himto go to his room and sleep.
4 days later, Analia was in the video shop when Lizada ordered her to go to
the sala. She refused bec no one would tendto the video shop. They fought.
When the mother arrived, she sided with Lizada
which prompted Analia to shout Ayoko na, ayoko na. Analia then left to
retrieve unreturned tapes.
When she got home, the mother asked her what she meant by ayoko na so
Analia told her that
Lizada had beentouching her private parts.
They then went to the police and made a report.
She was examined by a doctor who found her hymen intact.
Later on, she also told her mother of the rapes. Analia then executed a
Dagdag na Salaysay ng Paghahabla
andcharged Lizada with rape.The defense:
Lizada denied the rapes, claimed that he loved the children as if they were
his own. He cooked and prepared their food,ironed their school uniforms, and
bathed them, except Analia who was already big.
Analia was har headed and often disobeyed him. This caused Lizada and the
mother to quarrel. The relatives of thehusband also frequently visited, which
irritated him.
He says that the mother probably coached the children so that she could
manage the business and take control of all theproperty (VHS, 2 TVs,
washing machine, scooter, sala set, CD player, videoke).
Also, the mother was exasperated bec he was unemployed.------TC found him guilty of 4 counts of rape in 7th
par, no 1, RPC 335. Death penalty for each count.Issue:Held:Ratio:
Argument of Lizada #1:
That his conviction for rape in December 1992 was so remote from the date
(November 1995) alleged in the Information,so that the Nov 1995 could no
longer be considered as being "as near to the actual date at which the
offense wascommitted" as provided under Section 11, Rule 110 of the Rules
on Criminal Procedure.
SC says:
Does not agree.
d2015member
In People v. Garcia, Court upheld a conviction for 10 counts of rape based on
an information alleging multiplerape "from November 1990 up to July 21,

1994," a time difference of almost four years. Such was longer thanthat
involved in this case.
In any case, Lizada's failure to raise a timely objection based on this ground
constitutes a waiver of his right toobject.
Argument of Lizada #2:
The information is defective because the date of the offense "on or about
August 1998" is too indefinite, in violation of Rule 110, Section 11 of the
Revised Rules on CrimPro:"Sec. 11. Date of commission of the offense.

It is not necessary to state in the complaint or information the precise

datethe offense was committed except when it is a material ingredient of the
offense. The offense may be alleged to havebeen committed on a date as
near as possible to the actual date of its commission. "

SC does not agree with Lizada. The precise date of the commission of the
rape is not an essential element of the crime.

Failure to specify the exact date when the rape was committed does not
make the Information defective.

The reason for this is that the gravamen rape is carnal knowledge under any
of the circumstances enumerated under RPC 335.

SC cites People v. Salalima:

o
Failure to specify the exact dates or time when the rapes occurred does not
make the information defectivebecause the precise date or is not an element
of the offense.
o
As long as it is alleged that the offense was committed at any time as near to
the actual date when the offensewas committed an information is sufficient.
o
In previous cases, before and until, sometime in the year, some
occasions prior and/or subsequent have
been ruled as sufficient compliance with Section 11, Rule 110 of the Revised
Rules on CrimPro

So, he cannot complain that he was deprived of the right to be informed of

the nature of the cases against him and that hewas deprived of the
opportunity to prepare for his defense
Re: Lizardos failure to protest and object

When Analia testified how Lizada defiled her twice a week, Lizada did not
protest. Lizada even cross-examined her.

The presentation by the prosecution to prove the charges, without objection

by Lizada, constituted a waiver of his right toobject to any perceived
infirmity.

Also, Lizada did not even file a motion for a bill of particulars under Rule 116,
Section 9 of the Revised Rules on CrimProbefore he was arraigned.

So, Lizada was duly arraigned under the Information and entered a plea of
not guilty to the charge without any plaint onthe sufficiency of the
Information.

It was only on appeal to the SC that he questioned for the first time the
sufficiency of the Information. It is now too late inthe day for him to do so.Re:
Hymen

The fact that Analia remained a virgin does not preclude her having been
raped. She being of tender age, it is possiblethat the penetration went only
as deep as her labia.
o
Even, the slightest penetration of the labia by the male organ constitutes
consummated rape
o
Whether or not the hymen was still intact has no substantial bearingRe:
Criminal liability of Lizada

Prosecution proved through the testimony of Analia that Lizada raped her
twice a week in 1998. In 3 criminal cases,Lizada is guilty only of simple rape.

As to the other one, the testimony of Analia and her brother leads SC to
believe Lizada is guilty of attempted rape. Basedon the testimony, the
brother was able to interrupt the acts and so there was no introduction of the
penis into the vagina.Judgment set aside. Lizada guilty of simple rape in 3
cases, in the other one attempted rape.