Under Article 266-B of the Revised Penal Code 38 , the death penalty is imposed if

the rape is committed with the attendance of any "aggravating/qualifying circumstances." One of such "aggravating/qualifying circumstances" is "when the victim is under eighteen (18) years of age and 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." Both minority and actual relationship must be alleged and proved; otherwise, conviction for rape in its qualified form will be barred.

To establish the age of the minor victim, either as an element of the crime or as a qualifying circumstance, the Court has set the guidelines in People v. Pruna39 _as

follows:

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (As amended by R.A. 2632, approved June 18, 1960, and R.A. 4111, approved June 20, 1964).

36 _{Section 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.

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." 37

G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. 38

Art. 266-B provides in part: x x x x

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

1. When the victim is under eighteen (18) years of age and the offender is a parent x x x of the victim. x x x x

5. When the victim is a child below seven (7) years old. 39

respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

During the trial, however, the Prosecution adduced no evidence to establish AAA’s minority save her testimony and that of her mother's. In the absence of proof of AAA's minority in accordance with the guidelines set in People v. Pruna, we concur with the CA's conclusion that he could not be properly found guilty of qualified rape. Indeed, his substantial right to be informed of the nature and cause of the accusation against him would be nullified otherwise. Accordingly, the CA correctly prescribed reclusion

perpetua as the penalty.

On the other hand, the amended information for the BBB’s rape case, it was sufficiently stated the minority of BBB and her being the daughter of the accused. Further, the Prosecution established that BBB was only nine years old at the time of the rape on November 10, 1999 through her certificate of live birth. Considering that the Prosecution duly proved BBB's minority and her relationship with the accused, the CA correctly affirmed the penalty of death meted by the RTC.

With the intervening passage on June 24, 2006 of Republic Act No. 9346 however, the imposition of the death penalty has become prohibited. The retroactive application prohibition against the death penalty must be made here because it is favorable to the accused. Nonetheless, he shall not be eligible for parole, because Section 3 of Republic Act No. 9346 expressly provides that persons "whose sentences will be reduced to reclusion perpetua by reason of this Act" shall not be eligible for parole under Act No. 4103 (Indeterminate Sentence Law), as amended.

SC PP: In reviewing rape convictions, the Court has been guided by three principles,

namely: (a) that an accusation of rape can be made with facility; it is difficult for the complainant to prove but more difficult for the accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime of rape as involving only two persons, the rapist and the victim, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the Prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the Defense. Ultimately and frequently, the resolution of the charge of rape hinges on the credibility of the victim's testimony.

ROBERT VICTOR G. SEARES, JR., complainant, vs. ATTY. SANIATA LIWLIWA V. GONZALES-ALZATE, respondent. / Adm. Case No. 9058. November 14, 2012 /

FIRST DIVISION

LEGAL ETHICS / VIOLATION OF CODE OF PROFESSIONAL RESPONSIBILITY F: Atty. SaniataLiwliwa V. Gonzales-Alzatewas the former lawyer of Complainant Robert Victor G. Seares, Jr. She was charged with incompetence and professional negligence, and a violation of the prohibition against representing conflicting interests. Seares, Jr. alleges that Atty. Gonzales-Alzate was his legal counsel when he ran for Mayor of Dolores, Abra in the May 2007 elections but lost to Albert Z. Guzman. Atty. Alzatefiled in his behalf a "Petition of Protest Ad Cautelam" in RTC BanguedAbra but was dismissed for being “fatally defective”. Eventually, Atty. Alzateinsisted on filing a "Petition of Protest" in the RTC, but the petition was also dismissed on the ground that it was already time-barred, and on the further ground of forum shopping because the certification against forum shopping was false. Searesran again for Municipal Mayor in the May 2010 elections, and won, and he later learned that his political opponents retained Atty. Alzate as their counsel. During his term as mayor, one CarlitoTurqueza charged him with abuse of authority, oppression and grave misconduct in the SangguniangPanlalawigan of Abra and Atty. Alzate represented the Complainant.

Seares, Jr. asserts that Atty. Gonzales-Alzate thereby violated Canon 15, Canon 17 and Canon 18 of the Code of Professional Responsibility for negligently handling his election protest, for prosecuting him, her former client, and for uttering false and hurtful allegations against him. Hence, he prays that she should be disbarred.

Atty. Gonzales-Alzate denies the charges of professional negligence and incompetence, and of representing conflicting interests. She states that Seares’ counsel, Atty. Yasser Lumbos, cannot go to Abra to handle his case, hence Seares solicited her legal services in May 2007. Further, Alzate refutes the charge that she represented conflicting interests by explaining that: (a) she was engaged as an attorney in the May 2010 elections only by Dominic Valera (a candidate for Municipal Mayor of Bangued, Abra) and by President Aquino, neither of whom was Seares, Jr.'s political opponent; (b) CarlitoTurqueza used to be a political ally of Seares, Jr.; (c) she disclosed to Turqueza her having once acted as a counsel of Seares, Jr.; (d) Seares, Jr. did not object to her legal representation of Turqueza; and (e) the 2007 election protest that she handled for Seares, Jr. was unrelated to the administrative complaint that Turqueza brought against Seares, Jr. in 2010.

I1: Was Atty. Gonzales-Alzate guilty of professional negligence and incompetence in her handling of Seares, Jr.'s electoral protest in the RTC?

H1: We dismiss the disbarment complaint against Atty. Gonzales-Alzate.

For administrative liability under Canon 18 to attach, the negligent act of the attorney should be gross and inexcusable as to lead to a result that was highly prejudicial to the client's interest.

A reading of the June 8, 2007 order of the RTC Bangued, Abra shows that the true cause of the dismissal of Seares, Jr.'s "Petition for Protest Ad Cautelam" was its prematurity in light of the pendency in the Commission on Elections of his "Petition to Suspend Canvass and Proclamation." We see no trace of professional negligence or incompetence on the part of Atty. Gonzales-Alzate in her handling of Seares, Jr.'s protest, especially because she even filed in his behalf a "Motion for Reconsideration," a "Comment on the Court's Dismissal of the Protest Ad

Cautelam" and a "Motion to Withdraw Cash Deposit."

We cannot find Atty. Gonzales-Alzate professionally negligent in respect of the filing and eventual dismissal of the subsequent "Petition for Protest." The verification and certification against forum shopping contained handwritten superimpositions by Atty. Gonzales-Alzate, but such superimpositions were apparently made only to reflect the corrections of the dates of subscription and the notarial document number and docket number.

I2: Did Atty. Gonzales-Alzate violate the prohibition against representing conflicting interests when she assisted Turqueza in his administrative case against Seares, Jr., her former client?

H2: No, Atty. Alzate did not violate Canon 15 of the Code of Professional Responsibility Canon 15 of the Code of Professional Responsibility40 prohibits an attorney from

representing a party in a controversy that is either directly or indirectly related to the subject matter of a previous litigation involving another client.

Atty. Gonzales-Alzate's legal representation of Turqueza neither resulted in her betrayal of the fidelity and loyalty she owed to Seares, Jr. as his former attorney, nor invited the suspicion of unfaithfulness or double dealing while she was performing her duties as an attorney. Representing conflicting interests would occur only where the attorney's new engagement would require her to use against a former client any confidential information gained from the previous professional relation. The prohibition did not cover a situation where the subject matter of the present engagement was totally unrelated to the previous engagement of the attorney. To constitute the violation, the attorney should be shown to intentionally use against the former client the confidential information acquired by her during the previous employment. But a mere allegation of professional misconduct would not suffice to establish the charge, because accusation was not synonymous with guilt.

The prohibition against representing conflicting interests further necessitated identity of the parties or interests involved in the previous and present engagements. The adverse party in Seares, Jr.'s election protest in 2007 was Albert Z. Guzman, the newly-elected Municipal Mayor of Dolores, Abra, who was not involved in Turqueza's administrative complaint against Seares, Jr. In fact, Turqueza was not even a mayoral candidate in Dolores, Abra in the elections held in 2007 and in 2010. The allegation by Seares, Jr. that Atty. Gonzales-Alzate represented his political opponent was not even true because Turqueza was Seares, Jr.'s political ally, as Atty. Gonzales-Alzate stated. It is notable, too, that Seares, Jr. expressly agreed to Atty. Gonzales-Alzate's legal representation of Turqueza in the latter's administrative case against Seares, Jr. This is borne out by the affidavit of Turqueza that Atty. Gonzales-Alzate submitted.

We find that the administrative complaint against Atty. Gonzales-Alzate was nothing but an attempt to vex, harass and humiliate her as well as to get even with her for representing Turqueza against Seares, Jr. We cannot tolerate it because attorneys are officers of the Court who are placed under our supervision and control due to the law imposing upon them peculiar duties, responsibilities and liabilities.We exist in a symbiotic environment with them where their duty to defend the courts is reciprocated by our shielding them from vindictive individuals who are deterred by nothing just to strip them of their privilege to practice law.

40_{Rule 15.01 — A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable}

whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

Rule 15.02 — A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client.

Rule 15.03 — A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts

REPUBLIC OF THE PHILIPPINES, represented by the COMMISSIONER OF INTERNAL REVENUE, Petitioner, vs. TEAM (PHILS.) ENERGY CORPORATION

(formerly MIRANT (PHILS.) ENERGY CORPORATION), Respondent./G.R. No. 188016 /January 14, 2015/ FIRST DIVISION

Taxation Law/Tax Refund

F: Mirant (Philippines) Energy Corporation, a domestic corporation, filed an