PER CURIAM: batas

Before this court for automatic review is the joint decision of the Regional Trial Court of Quezon City, Branch 103, in Criminal Cases Nos. Q-96-68119 and Q-96-68120, finding accused-appellant Antonio Magat y Londonio guilty of raping his daughter, Ann Fideli L. Magat, on two occasions and sentencing him to suffer the extreme penalty of death for each case, and to pay the sum of P750,000.00 as compensatory, moral and exemplary damages.

The two (2) Informations, charging accused-appellant with rape reads:

Upon arraignment on January 10, 1997, accused-appellant pleaded guilty but bargained for a lesser penalty for each case. Complainant's mother, Ofelia Limpoco Magat, and the public prosecutor, Rio Espiritu agreed with the plea bargain. Consequently, the trial court issued, on that same day, an Order, the fallo of which reads: katarungan

After three months, the cases were revived at the instance of the complainant on the ground that the penalty imposed was "too light."4 [Order of March 6, 1997, Record, p. 28

"Let a subpoena be issued to Fiscal Philip Aguinaldo and to bring with him all the records pertinent in these cases."]
As a consequence, accused-appellant was re-arraigned on both Informations on April 15, 1997 where he entered a plea of not guilty.5 [Record, p. 37.]

Thereafter, trial on the merits ensued with the prosecution presenting Dr. Ida Daniel, medico-legal officer of the National Bureau of Investigation and complainant's mother.

On July 3, 1997 accused-appellant entered anew a plea of guilty.6 [Id., pp. 52-53.] The court read to him the Informations in English and Tagalog and repeatedly asked whether he understood his change of plea and propounded questions as to his understanding of the consequences of his plea.7 [Id, p. 53.]

Convinced of accused-appellant's voluntariness of his plea of guilty, the court required the taking of complainant's testimony. The accused-appellant did not present any evidence.

On July 15, 1997, the trial court rendered judgment, the decretal portion of which reads: HTML

Hence, this automatic review.

Accused-appellant contends that the trial court erred in re-arraigning and proceeding into trial despite the fact that he was already convicted per Order of the trial court dated January 10,1997 based on his plea of guilt. He also argues that when the court rendered judgment convicting him, the prosecution did not appeal nor move for reconsideration or took steps to set aside the order. Consequently, the conviction having attained finality can no longer be set aside or modified even if the prosecution later realizes that the penalty imposed was too light. Accused-appellant likewise posit that the re-arraignment and trial on the same information violated his right against double jeopardy.

The January 10, 1997 order of the trial court convicting the accused-appellant on his own plea of guilt is void ab initio on the ground that accused-appellant's plea is not the plea bargaining contemplated and allowed by law and the rules of procedure. The only instance where a plea bargaining is allowed under the Rules is when an accused pleads guilty to a lesser offense. Thus, Section 2, Rule 116 of Revised Rules of Court provides:

Here, the reduction of the penalty is only a consequence of the plea of guilt to a lesser penalty.

It must be emphasized that accused-appellant did not plead to a lesser offense but pleaded guilty to the rape charges and only bargained for a lesser penalty. In short, as aptly observed by the Solicitor General, he did not plea bargain but made conditions on the penalty to be imposed. This is erroneous because by pleading guilty to the offense charged, accused-appellant should be sentenced to the penalty to which he pleaded.

It is the essence of a plea of guilty that the accused admits absolutely and unconditionally his guilt and responsibility for the offense imputed to him.9 [People vs. De Luna, 174 SCRA 204 (1989)] Hence, an accused may not foist a conditional plea of guilty on the court by admitting his guilt provided that a certain penalty will be meted unto him.10 [US vs. Estabillo, 9 Phil. 668 (1907); People vs. Sabilul, 93 Phil. 567 (1937) cited in People vs. Albert, 251 SCRA 136, 156 (1995)]

Accused-appellant's plea of guilty is undoubtedly a conditional plea. Hence, the trial court should have vacated such a plea and entered a plea of not guilty for a conditional plea of guilty, or one subject to the proviso that a certain penalty be imposed upon him, is equivalent to a plea of not guilty and would, therefore, require a full-blown trial before judgment may be rendered.11 [People vs. Sabilul, Id.]

In effect, the judgment rendered by the trial court which was based on a void plea bargaining is also void ab initio and can not be considered to have attained finality for the simple reason that a void judgment has no legality from its inception.12 [People vs. Estomaca, 256 SCRA 421 (1996)] Thus, since the judgment of conviction rendered against accused-appellant is void, double jeopardy will not lie.

Nonetheless, whatever procedural infirmity in the arraignment of the accused-appellant was rectified when he was re-arraigned and entered a new plea. Accused-appellant did not question the procedural errors in the first arraignment and having failed to do so, he is deemed to have abandoned his right to question the same13 [Zacarias vs. Cruz, 30 SCRA 729; People vs. Cerna, 21 SCRA 569.] and waived the errors in procedure.14 [US vs. Sobreviñas, 35 Phil. 32.] yacats

Accused-appellant also maintains that assuming that there was proper basis for setting aside the Order of January 10,1997, the trial court erred in not finding that he made an improvident plea of guilty. He faults the trial court in not complying with the procedure laid down in the Section 3, Rule 116 of the Revised Rules of Court.15 [Sec. 3. Plea of guilty to capital offense; reception of evidence.- When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf.] He claims that the record of the case fails to support the trial court's assertion that it conducted a searching inquiry to determine that the accused-appellant voluntarily entered his plea of guilty with full understanding of the consequences of his plea. He claims that there is no evidence that the trial court conducted searching inquiry in accordance with the rules.

Under the present rule, if the accused pleads guilty to capital offense, trial courts are now enjoined: (a) to conduct searching inquiry into the voluntariness and full comprehension of the consequences of his plea; (b) to require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (c) to ask the accused if he so desires to present evidence in his behalf and allow him to do so if he desires.16 [People vs.Camay,152 SCRA 401; People vs. Verano, Jr.,163 SCRA 614.]

This Court, in a long line of decisions imposed upon trial judges to comply with the procedure laid down in the rules of arraignment, particularly the rules governing a plea of guilty to a capital offense in order to preclude any room for reasonable doubt in the mind of either the trial court or of this Court, on review, as to the possibility that there might have been some misunderstanding on the part of the accused as to the nature of the charges to which he pleaded guilty and to ascertain the circumstances attendant to the commission of the crime which justify or require the exercise of a greater or lesser degree of severity in the imposition of the prescribed penalties.17 [People vs. Basa, 51 SCRA 317; People vs. Albert, 251 SCRA 136(1995); People vs. Estomaca, 256 SCRA 421, 428-429(1996)] Apart from the circumstances that such procedure may remove any doubt that the accused fully understood the consequences of his plea is the fact that the evidence taken thereon is essential to the fulfillment by this Court of its duty of review of automatic appeals from death sentences.18 [People vs. Villacores, 97 SCRA 567.]

We have carefully reviewed the record of this case and are convinced that the trial judge has faithfully discharged his bounden duty as minister of the law to determine the voluntariness and full understanding of accused-appellants' plea of guilty. The absence of the transcript of stenographic notes of the proceedings during the arraignment do not make the procedure flawed. The minutes of the proceedings19 [Record, p. 53.] indubitably show that the judge read the Informations to the accused-appellant both in English and Tagalog, asked him questions as to his understanding of the consequences of his plea, his educational attainment and occupation. Accused-appellant could have known of the consequence of his plea having pleaded twice to the charges against him. In fact, in the two (2) letters sent to the trial court judge, accused-appellant not only admitted his "sins" but also asked for forgiveness and prayed for a chance to reform.20 [Exhibit "2", Record, pp. 47, 50.] olanski

Moreover, the prosecution has already presented its evidence. Thus, even assuming that there was an improvident plea of guilt, the evidence on record can sustain the conviction of the accused-appellant.

The testimony of the complainant, as summarized by the Solicitor General, reveal:

The medical examination confirmed complainant's testimony. Dr. Ida P. Daniel of the NBI testified that complainant had "lax fourchette" and "distensible hymen" which may be caused by sexual intercourse or penetration of a hard blunt object such as a penis. She also concluded that the "shallow rugosities" inside her vagina lead to the conclusion that there was more than one or even more than ten (10) times of sexual intercourse or penetration of a hard blunt object that passed through her vaginal canal. Moreover, her hymen orifice can allow complete penetration of an average-sized Filipino adult penis in its erect stage which is from 2.5 to 3.0 cms. in diameter.21 [TSN, May 22,1997, pp.15-26.] hustisya

Surprisingly, accused-appellant did not present any evidence to rebut the prosecution's evidence nor testified in his behalf to deny the in culpatory testimony of the complainant, giving us the impression that he acknowledges the charges against him.

While we have in a catena of cases set aside convictions based on pleas of guilty in capital offenses because of the improvidence of the plea, we did so only when such plea is the sole basis of the judgment of the condemnatory judgment. Thus, when the trial court in obedience to this Court's injunction, receives evidence to determine precisely whether or not the accused has erred in admitting guilt, the manner in which the plea of guilty is made loses legal significance, for the simple reason that the conviction is predicated not on the plea but on the evidence proving the commission by the accused of the offense charged.22 [People vs. Nismal, 114 SCRA 487 (1982) cited in People vs. Petalcorin,180 SCRA 693 (1989)] In such case, it cannot be claimed that defendant was sentenced to death without having been previously informed of the nature of the charges against him and of the qualifying and aggravating circumstances recited in the information, as he is fully apprised not only of the allegations in the information but of the entire evidence of the prosecution.23 [People vs. Corpuz, 102 SCRA 674.]

Additionally, accused-appellant's second plea of guilty validated his first plea of guilt. It removed any reasonable doubt as to his guilt.24 [People vs. Matilla, 105 SCRA 777-778.]

Accused-appellant further impugns the trial court's imposition of the death penalty in Criminal Case No. Q-96-68120 contending that the complainant was already nineteen (19) years old when the alleged rape occurred.

Republic Act No. 7659 which amended Article 335 of the Revised Penal Code provides:

Complainant was born on August 14, 1977.25 [Exh. "C", p. 60, Record.] On September 1, 1996, when the rape was committed (Criminal Case No. Q-96-68120), complainant was already nineteen (19) years of age. Therefore, the same does not fall under the last paragraph of Article 335 of the Revised Penal Code, as amended by RA No. 7659. The proper penalty should be reclusion perpetua pursuant to Article 335 of the Revised Penal Code. Jksm

However, the extreme penalty of death should be imposed in Criminal Case No. Q-96-68119, complainant being only 17 years of age when accused-appellant, his father, raped her.

Finally, accused-appellant likewise assails the award of P750,000.00 damages claiming that the same is excessive.

With regard to the award of compensatory damages, we have ruled in People vs. Victor,26 [292 SCRA 186 (1998)] which was later reaffirmed in People vs. Prades,27 [293 SCRA 411 (1998)] that "if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity of the victim shall be in the increased amount of not less than P75,000.00."28 [See also People vs. Mahinay, 302 SCRA 486.] Accordingly, in Criminal Case NO. Q-96-68119, the award of compensatory damages should be increased from P50,000.00 to P75,000.00. In Criminal Case No. Q-96-68120 however, while appellant was sentenced to reclusion perpetua, the compensatory damage should be the same (P75,000.00). As rightly argued by the Solicitor General, the trauma, ignominy, pain and shame suffered by the complainant can not be treated or regarded any lesser.

The award of civil indemnity "is not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations overtime, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity."29 [People vs. Victor, supra.] More so, if the crime is committed by the father against his own flesh and blood.

With respect to the award of moral damages, we have in People vs. Prades30 [Supra.] held: Chiefx

Nevertheless, we find the award of P200,000.00 moral damages excessive. An award of P50,000.00 for each count of rape is to our mind more reasonable. However, we are deleting the award of exemplary or corrective damages, in the absence of any legal basis therefor.

Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by majority vote, that the law is constitutional and the death penalty should be imposed accordingly.

WHEREFORE, judgment is hereby rendered as follows:

In accordance with Section 25 of the RA 7659, amending Article 83 of the Revised Penal Code, upon the finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of executive clemency or pardoning power.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

Davide, Jr., C.J., on official business.

Panganiban, Quisumbing, Ynares-Santiago, and De Leon, Jr., JJ., on leave.