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ATTEMPTED RAPE |
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This Court
agrees with
the trial
court that
in Criminal
Case No.
L-5517, attempted
rape was
committed and
SALVADOR’s guilt
was proved
beyond reasonable
doubt. He
had commenced
the commission
of the crime
of rape directly
by overt
acts, namely,
by grabbing
RACQUEL, embracing
her, forcing
her to lie
on the grass,
going on
top of her
and removing
her pants
– evidently
with intent
to have carnal
knowledge of
her against
her will
– but he
failed to
perform all
the acts
of execution
which would
have produced
the crime
of rape,
not because
of his spontaneous
desistance30
[Article 6
Revised
Penal Code.]
but by the
timely arrival
of Aurora
Castro and
Florentina Ausena
who heard
RACQUEL’s cries
for help.
The governing law when the attempted rape in Criminal Case No. L-5517 was committed is Article 335 of the Revised Penal Code, as amended by R.A. No. 7659. The Information in Criminal Case No. L-5517 alleges that SALVADOR is the stepfather of RACQUEL. This circumstance of relationship when coupled with the minority of the victim, i.e., if the latter is below 18 years of age, is a special qualifying circumstance under said governing law which, therefore, makes mandatory the imposition of the death penalty in the consummated felony of rape. Fortunately for SALVADOR, he is not a stepfather of RACQUEL because he is only the common-law spouse of RACQUEL’s mother. The relationship of stepfather presupposes a legitimate relationship. A stepfather is the husband of one’s mother by virtue of a marriage subsequent to that of which the person spoken of is the offspring.31 [People vs. Dimapilis, G.R. Nos. 128619-21, 17 December 1998; People vs. Abundio Tolentino, G.R. No. 130514, June 1999.] While the fact of being "the common-law spouse of the parent of a victim," if coupled with the minority of the victim is a special qualifying circumstance under R.A. No. 7659, neither is this alleged in the Information. Moreover, the victim was already above 18 years old when the attempted rape was committed. She was born on 13 May 1978.32 [TSN, 9 July 1997, 4.] Therefore, the penalty to be reckoned with in determining the penalty for attempted rape in Civil Case No. L-5517 would be reclusion perpetua, the penalty prescribed for simple rape under Article 335, as amended by R.A. No. 7659. Pursuant then to Article 51 of the Revised Penal Code, the imposable penalty for the attempted rape in Criminal Case No. L-5517 is prision mayor, which is two degrees lower than reclusion perpetua. There being no modifying circumstance duly proven, the penalty of prision mayor may be imposed in its medium period.33 [Article 64, Revised Penal Code.] Since SALVADOR is entitled to the benefits of Indeterminate Sentence Law, an indeterminate penalty whose minimum shall be within the range of prision correccional, the penalty next lower to prision mayor, and whose maximum shall be the medium of the latter may be properly imposed on SALVADOR. The penalty imposed by the trial court in Criminal Case No. L-5517 is two (2) years, four (4) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. The maximum period is not correct since six (6) years and one (1) day falls within the minimum period of prision mayor. The maximum should be within the duration of prision mayor medium, to wit: eight (8) years and one (1) day to ten (10) years; and eight (8) years and one (1) day would be appropriate.
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