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Decision -7- G.R. No. 228223 rape would reveal that the coitus was committed with her acquiescence because: (1) she did not offer even a small amount of resistance to the sexual advances; and (2) she did not shout for help or try to escape from the perpetrator despite the opportunity to do so. Lastly, he asserts that his alibi assumes importance in view of the alleged weakness of the evidence for the prosecution. In its Comment, respondent People of the Philippines, through the OSG, asserts that the appeal of the December 11, 2014 Decision of the RTC threw the entire records of Criminal Case No. 1089 open for review. Respondent maintains that Pendoy can be properly convicted of as many offenses as were charged and proven. According to the respondent, the April 7, 2006 Information contains the averments that Pendoy had committed acts punishable under paragraphs 1 and 2, Article 266-A of the Revised Penal Code (RPC). It claims that the elements for both rape and sexual assault were adequately proven through the credible, consistent and forthright testimony of AAA, which was corroborated by the medico-legal report issued by Dr. Pizarras. Respondent prays that the June 24, 2016 Decision of the CA be affirmed in toto. The Court's Ruling We sustain the conviction of Pendoy. The appeal is devoid of merit. Preliminarily, the Court finds that Pendoy's resort to the special civil action for Certiorari under Rule 65, in his quest to reverse and set aside the assailed June 24, 2016 Decision and the October 27, 2016 Resolution of the CA, is erroneous. Pendoy filed the instant petition designating it in both the caption and the body as one for "certiorari" contending that the questioned decision and resolution of the CA were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Well settled is the rule that certiorari will lie only when "there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law." 10 The general rule is that a writ of certiorari will not issue where the remedy of appeal is available to the aggrieved party. 11 The availability of the right of appeal precludes recourse to the special civil action for certiorari. In the case at bench, appeal was not only available to Pendoy but also a speedy and adequate remedy. Also, Pendoy failed to show circumstances that would warrant a deviation from the general rule as to make available to him a petition for certiorari in lieu of making an appeal. ti( 10 II Bernardo v. Court ofAppeals, 341 Phil. 413,425 (1997). Cathay Pacific Steel Corporation v. Court ofAppeals, 531 Phil. 620, 631 (2006).

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Pendoy v. CA

Jurisprudence

Case number: G.R. No. 228223

Division: PH Supreme Court Third Division

Date of decision: Jun 10, 2019

Year of decision: 2019

GBV Case Type

Acts of lasciviousness
Child Abuse (R.A. 7610)
Child Rape
Minor
Rape

Nature of the case: The victim, a sixteen (16)-year-old minor who is the househelp of the accused was sexually molested by the accused by means of inserting his finger to the genitalia of the victim and, thereafter, place himself on top of her and insert his genitalia to the victim's, thereby succeeding in having carnal knowledge with the said victim without her consent and against her will in Baclayon, Bohol. The accused on the other hand, posited that the prosecution evidence failed to overcome his constitutional presumption of innocence. He maintains that the prosecution failed to establish that force, threat or intimidation was exerted upon the victim in the alleged commission of the sexual congress with the latter. The Court is convinced that the accused had employed force to subjugate victim’s will. It bears stressing that force need not be irresistible or of such character that it could not be repelled; all that is necessary is that the force used by the accused is sufficient to consummate his evil purpose, or that it was successfully used. It appears that victim later submitted to the accused’s lust out of fear of him because she earlier learned from a neighbor that he had killed someone in the past. She just cried silently. Indeed, the prosecution had amply proved the absence of victim’s consent to the sexual congress. Hence, the accused is convicted for the crimes of Rape and Lascivious Conduct under Section 5(b) of R.A. No. 7610.

Summary of outcome: He is sentenced to suffer the following, viz:

For Rape: he is sentenced to suffer the penalty of Reclusion Perpetua and ordered to pay the victim the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P75,000.00 by way of exemplary damages; and

For Lascivious Conduct: he is sentenced to suffer the indeterminate penalty of fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum and ordered to pay the victim the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P50,000.00 as exemplary damages. All damages awarded shall be subject to interest at the rate of six percent (6%) per annum from the finality of the Decision until its full satisfaction

Observatory: Gender-Based Violence

Ponente: PERALTA, J.:

Long title: ROEL PENDOY Y POSADAS, PETITIONER, VS. HON. COURT OF APPEALS (18TH DIVISION) - CEBU CITY; THE HON. DIONISIO CALIBO, JR., PRESIDING JUDGE OF BRANCH 50, REGIONAL TRIAL COURT OF LOAY, BOHOL; AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.DECISION

Geolocation 1

Latitude: 9.622385

Longitude: 123.913491

: Geolocation 1

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Pendoy v. CA

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