Corollary, accused-appellant argues that the death penalty should not have been imposed on him for being contrary to RA 7659 which provides that such penalty shall be imposed only when the victim is under eighteen (18) years old and the offender is her parent.

We agree.  Section 11 of RA 7659, which amended Art. 335 of The Revised Penal Code, provides that the death penalty shall be imposed if the crime of rape is committed, inter alia, 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 victim.  At the time of the rape on 15 June 1997, the complaining witness was already twenty-eight (28) years old.  Consequently, in Crim. Case No. 98-2236, accused-appellant should only be convicted of simple rape, and his penalty should only be reclusion perpetua, and not death.

En Banc, Justice Bellosillo, PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REMEGIO TAGANNA, accused-appellant. [G.R. Nos. 137608-09.  July 6, 2001]

The trial court has correctly imposed the death penalty in the case at bar after taking into account the qaulifying circumstances of minority of the victim and the paternity relationship between appellant and the victim. Section 11 of Republic Act No. 7659, amending Article 335 of the Revised Penal Code, provides:

"Sec. 11. Article 335 of the same Code is hereby amended to read as follows:

"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;

"2. When the woman is deprived of reason or otherwise unconscious; and

"3. When the woman is under twelve years of age or is demented.

"The crime of rape shall be punished by reclusion perpetua.

"Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

"When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

"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, 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. Jjjä uris

"2. When the victim is under the custody of the police or military authorities.

"3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.

"4. When the victim is a religious or a child below seven (7) years old.

"5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

"6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

"7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation."

The crime of rape has been established. Alphamia, the victim, is a minor (merely 10 years of age at the time of commission of the offense), and the offender is the father of the victim. These elements have been properly alleged in the information and proven during the trial.

In People vs. Ramos,18 [296 SCRA 559.] the Court has declared: Ky-calr

"While Republic Act No. 7659 did not give a legal designation to the crime of rape attended by any of the seven new circumstances introduced in Article 335 on December 31, 1993, this Court has referred to such crime as qualified rape in a number of its decisions. However, with or without a name for this kind of rape, the concurrence of the minority of the victim and her relationship with the offender give a different character to the rape defined in the first part of Article 335. They raise the imposable penalty upon a person accused of rape from reclusion perpetua to the higher and supreme penalty of death. Such an effect conjointly puts relationship and minority of the offended party into the nature of a special qualifying circumstance."19 [At p. 575.]

Per Curiam, En Banc, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUSTICO RIVERA Y PALACIO, accused-appellant. [G.R. No. 130607. November 17, 1999]