Fernando v CA

FERNANDO V CA

GR No. 159751, 6 Dec. 2006

Quisumbing, J.:

FACTS:

        Acting on reports of sale and distribution of pornographic materials, police officers conducted police surveillance on the store of Gaudencio Fernando Music Fair.  On 5 May 1999, Judge Perfecto Laguio of RTC Manila issued a search warrant for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio Fernando and Warren Tingchuy. The warrant ordered the seizure of various magazines and VHS tapes with nude obscene pictures and pornographic films.  On the same day, the warrant was served on Rudy Estorninos who introduced himself as the store attendant.

        On 13 Sept. 1999, petitioners with Warren Tingchuy were charged with violation of RA 201.  Tingchuy pleaded not guilty.

        Prosecution filed the confiscated materials as evidence with Police Inspector Rodolfo Tababan, SPO4 Rolando Buenaventura and Brgy. Chairperson Socorro Lipana, who were all present during the raid. On 5 2000, RTC denied the demurrer to evidence and scheduled the reception of evidence for the accused.  The accused waived their right to present evidence and submitted the case for decision.

RTC:        

        convicted Fernando and Estorninos guilty; acquitted Tingchuy

CA: 

        affirmed in toto.

Petitioners:

        The prosecution failed to prove that at the time of the search, they were selling pornographic materials.  Since Fernando was not charged as the owner of the establishment, the prosecution must have prove that he was present during the raid and that he was selling the said materials.  Moreover, the court’s basis for ownership by the mayor’s permit is insufficient since the prosecution failed to prove his ownership of the establishment.  Estorninos insists that he was not an attendant nor did he introduce himself so.

SolGen:

        Owners of establishment selling obscene publications are expressly held liable under Art. 201, and his ownership was sufficiently proved.  As the owner, Fernando was naturally a seller, hence liable.  Estorninos was identified by Lipana as store attendant, hence also liable.

ISSUES:

        W/N the court erred in affirming the petitioner’s conviction.

HELD:

        No.  The Court dismissed the petition.

        As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect the public from obscene, immoral and indecent materials must justify the regulation or limitation (like Art. 201 of RPC).

Under Art. 201, to be liable, the prosecution must prove that :

• Materials, publication, picture or literature are obscene;
• Offender sold, exhibited, published or gave away such materials.

Obscenity – something which is offensive to chastity, decency or delicacy (People v Kottinger).  Test to determine:

• Whether the tendency of the matter charged as obscene is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall;
• That which shocks the ordinary and common sense of men as an indecency;
• Whether a picture is obscene must depend upon the circumstances of the case, that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.

        In this case, the materials were not exactly for art’s sake but rather for commercial purposes. The supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. (People v Go Pin)

        An actual exhibition of sexul act, preceded by acts of lasciviousness, can have no redeeming feature.  In it, there is no room for art.  One can see nothing but clear and unmitigated obscenity, indecency, and an offense to the public morals, inspiring and causing nothing but lust and lewdness, and exerting a corrupting influence. (People v Padan)

        In Gonzales v Kalaw Katigbak, the Court measures obscenity in terms of the dominant theme of the material taken as a whole rather than in isolated passages. 

        There is no perfect definition of obscenity for the individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.

        Miller test for obscenity:

• Whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest;
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specially defined by the applicable state law;
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

        The Court held that obscenity is to be regarded on a case to case basis and on the judge’s sound discretion.

Reason why RTC rendered the materials as obscene:

        Pictures of men and women in the nude doing sexual act appearing in the magazines are offensive to morals and are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition.  The pictures exhibited indecent and immoral scenes and acts.  The exhibition of the sexual act is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiring lust and lewdness, exerting a corrupting influence especially on the youth.

        The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to good minds.

        The Court also ruled that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Art. 201.  The offense under Art. 201 is committed only when there is publicity.  The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as longs as the said materials are offered for sale, displayed or exhibited to the public. 

        The mayor’s permit dated 8 Aug. 1996 shows that he is the owner of the store.  While the permit had already expired, it does not negate the fact that he owned the establishment.  Further, when he preferred not to present contrary evidence, the things which he possessed were presumptively his.

         Estorninos was identified by Police Inspector Tababan as the store attendant upon whom the search warrant was served.  The Court upheld the presumption of regularity in the performance of duty in Tababan’s testimony.