However, we cannot agree with the trial court’s imposition of the death penalty on accused-appellant for the rape of Teresa Micu. The pertinent law in effect at the time of commission of the crimes in this case, Article 335 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, provides:

ART. 335. When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

x x x x x x x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. x x x. (Underscoring ours)

The above-quoted provision states, inter alia, that where the victim of the crime of rape is under eighteen (18) years of age and the offender is a common-law spouse of the parent of the victim, the death penalty shall be imposed. This is one of the seven (7) modes enumerated in Section 11 of R.A. No. 7659 which are considered special circumstances specifically applicable to the crime of rape. In the subsequent cases of People v. Ilao6 296 SCRA 658, 670 (1998).6 and People v. Medina,7 300 SCRA 98, 116 (1998).7 it was ruled that the seven new attendant circumstances in Section 11 of R.A. No. 7659 "partake of the nature of qualifying circumstances and not merely aggravating circumstances," since said qualifying circumstances are punishable by the single indivisible penalty of death and not by reclusion perpetua to death. A qualifying circumstance increases it to a higher penalty while an aggravating circumstance affects only the period of the penalty but does not increase it to a higher degree. Unlike a generic aggravating circumstance which may be proved even if not alleged, a qualifying aggravating circumstance cannot be proved as such unless alleged in the information.

The amendment sought by the prosecution of the five informations, in order to allege the relationship of accused-appellant to the victim, were clearly substantial in character as they had the effect of changing the crime charged, thereby exposing accused-appellant to a higher penalty. Such amendment can no longer be done after accused-appellant has pleaded to the Information for simple rape on July 23, 1997,10 Record, p. 18.10 without violating his constitutional rights. Rule 110, Section 14 of the Rules of Court, provides:

The information or complaint may be amended, in substance or form, without leave of court, at anytime before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done, without prejudice to the rights of the accused. x x x.

In sum, the failure of the prosecution to allege the relationship of the accused to the victim has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659, which prescribes the death penalty when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim.11 People v. Bayya, G.R. No. 127845, March 10, 2000.11 In the recent cases of People v. Calayca,12 301 SCRA 192, 210 (1999).12 People v. Tabion13 317 SCRA 126, 145 (1999).13 and People v. Acala,14 307 SCRA 330, 359-360 (1999).14 where the prosecution failed to allege the fact of minority of the victim in the Informations, we reduced the penalty imposed from death to reclusion perpetua.

En Banc, Justice Ynares-Santiago, PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL SANDOVAL, accused-appellant [G.R. Nos. 132625-31. December 18, 2000]