the law prescribing the death penalty when rape is committed against a child below seven (7) years oldapplies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the penalty of death in accordance with Republic Act No. 9346; and (2) the privileged mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code.
Relying on People v. Bon, the Court of Appeals excluded death from the graduation of penalties provided in Article 71 of the Revised Penal Code. Consequently, in its appreciation of the privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its medium period, as maximum.
In a more recent case, the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with. Thus, the proper imposable penalty for the accused-appellant is reclusion perpetua. (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.