Legal Memo

Republic of the Philippines Regional Trial Court National Capital Judicial Region Pasig City

People of the Philippines, Complainant, -versus-

Criminal Case No. 12345-H For: Violaltion of R.A 6539 (Anti-Carnapping Act)

Romulo Takad, Accused.

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MEMORANDUM The accused, through counsel, respectfully submits that:

Statement of the case This case seeks to establish that the accused, Romulo Takad, is guilty beyond reasonable doubt for the violation of Republic Act No. 6539 (AntiCarnapping Act).

Statement of the facts Prosecution’s Evidence Romulo Takad is a common law partner of Ma. Teresa Lacsamana, a resident of 374 Villa Street, Palatiw, Pasig City. Ma. The latter is a member of Page 1 of 10/Violation of R.A 6539/The Pyramid Law Firm

the SCCPPTODA or the SAMAHAN. The SAMAHAN entered into a contract of loan with the BAYAN DEVELOPMENT CORPORATION or the BDC. The BDC is a corporation that extends loans to Sakbayan members and the members of Tricycle Operators and Drivers Association or TODA. The SAMAHAN obtained a loan from BDC Sakbayan Program, a sum of Php480, 000.00. Each member of the SAMAHAN has a share of Php 80, 000.00 from the said loan. Their contract generally provides that: “The money loaned by the SAMAHAN form the BDC shall be used to buy a tricycle. They also stipulated that failure of any members of the SAMAHAN to perform their obligations, which is to pay their outstanding debt; their tricycle will temporarily be under the custody of SAMAHAN’s TREASURER. The tricycle will only be released if the member, who failed to pay, pays his/her outstanding debt.”

The accused and Ma. Teresa Lacsamana went to the BDC’s main office. When they are in the office of the BDC, an employee of BDC, Ms. Zenny Aguirre, entertained them and released the tricycle. Ma. Teresa Lacsamana registered the said tricycle in her name in the Land Transportation Office of Pasig City; Ma. Teresa Lacsamana, for some reason, failed to perform her obligation, which is to pay her outstanding debt and because of such failure, the BDC requested them to deliver the tricycle to the SAMAHAN’s TREASURER for the mean time until Ma. Teresa Lacsamana pays her outstanding debt; The BDC gave Ma. Teresa Lacsamana a redemption period, October 17, 2003 within which to redeem the tricycle; but still she failed to perform her obligation within redemption period; The BDC gets the said tricycle from the SAMAHAN’s TREASURER. The BDC gave the tricycle to the new assignee, Mr. Carlos Parlade, who happened to be a resident also of Pasig City; Page 2 of 10/Violation of R.A 6539/The Pyramid Law Firm

The accused and Ma. Teresa Lacsamana went to the BDC’s main office informing the latter that they will pay their arrears and get back the tricycle. Zenny Aguirre refused to accept Lacsamana’s offer and informed the accused and Ma. Teresa Lacsamana that the said tricycle had already assigned to the new assignee, Mr. Carlos Parlade; Because of the negative response from the BDC, the accused said to Zenny Aguirre that he should not see the said tricycle in their place; On the early morning of November 21, 2003, approximately 1 o’clock in the morning, somebody has stolen the said tricycle from the outside of the house of Carlos Palarde; but before the person who stole the tricycle successfully grabs it, Carlo Parlade was able to shout to the said person “Hoy! Bat dala mo ang motor ko?” after he shouted, the person immediately started the engine and took away with him the tricycle. Carlos Parlade was able to recognize the face of the said person; Mario Mankas, Carlos Parlade’s neighbor, was able to see the incident. He saw Carlo Parlade ran after the tricycle but he did not clearly see the person who drove the tricycle; On the same day, Carlos Parlade called Zenny Aguirre, informing the latter that somebody had stole the tricycle.

During their conversation, Ms.

Aguirre automatically recalled what the accused told her, when the latter went to their office with Ma. Teresa Lacsamana, that “he should not see the tricycle in their place.” This statement gave her a doubt that it was the accused stole the tricycle; On the same day, Zenny Aguirre went to Parlade’s house. She asked for more details. When she arrived to the victim’s house, they went to the police station to report the incident;

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On the same day, the Police Officers immediately acted on the report of Carlos Parlade and Zenny Aguirre. They went to the house of the accused and arrested him; On the same day, the Policemen brought the accused to their station. When they arrived, they called Carlos Parlade, informing him that they had captured the person who allegedly stole his tricycle. They requested him to go to their station to identify the suspect; On the same day, Carlos Parlade went to the police station, when he arrived, the Police Investigator brought him to the room where the accused was; that time, the former was able to clearly identify the physical description of the suspect; On the same day also, Carlos Parlade brought Mario Mankas to the police station to identify the person who stole his tricycle and gave his testimonies that he saw the incident.

Accused’s Evidence The accused is the live in partner of Ma. Teresa Lacsamana.

He also

managed the tricycle bought by the latter, even though he is not a member of the SAMAHAN. When Ma. Teresa Lacsama failed to perform her obligations as member of the SAMAHAN. The BDC requested them to deliver the tricycle to the custody of the SAMAHAN’s TREASURER. The tricycle will only be releases if the former pays her obligations. The BDC gave Ma. Teresa Lacsama a redemption period, October 17, 2003, within which to pay her outstanding debt.

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On October 17, 2003, the accused and Ma. Teresa Lacsama, went to the office of the BDC to redeem the tricycle.

When they get there, the BDC’s

office was closed. On October 18, 2003, they went again to the BDC’s office. They were entertained by Zenny Aguirre. They informed Zenny Aguirre that they will pay their arrears and get back the tricycle but the former informed them that they cannot anymore get back the tricycle because they do not have ability to pay and she further informed them that the tricycle had already assigned to Carlos Parlarde. Because of the negative response, the accused told Zenny Aguirre that he should not see the said tricycle in their place, because this will hurt his feelings. His partner Ma. Teresa Lacsamana had even mortgaged her car just to redeem the tricycle.

Issue Whether or not the accused was the one who stole the tricycle of Carlos Parlade

Arguments and Discussions

First Argument The accused shall be aquitted because the testimonies of the prosecution’s witnesses are not sufficient and convincing. The witnesses of the prosecution failed to prove that the accused is guilty beyond reasonable doubt of the offense charged. Section 2, Rule 133 of the Rules of Court, provides: “Sec. 2.Proof beyond reasonable doubt — in a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, Page 5 of 10/Violation of R.A 6539/The Pyramid Law Firm

excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.” In the case of People of the Philippines vs. Erlinda Capuno y Tison, G.R. No. 185715, January 19, 2011, the Supreme Court said that: “The proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti — the body of the crime whose core is the confiscated illicit drug. Thus, every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.’’ The necessity for proof beyond reasonable doubt was discussed in People v. Berroya [347 Phil. 410, 423 (1997)]: “[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution, the State is arrayed against the subject; it enters the contest with a prior inculpatory finding in its hands; with unlimited means of command; with counsel usually of authority and capacity, who are regarded as public officers, as therefore as speaking semi-judicially, and with an attitude of tranquil majesty often in striking contrast to that of defendant engaged in a perturbed and distracting struggle for liberty if not for life. These inequalities of position, the law strives to meet by the rule that there is to be no conviction where there is reasonable doubt of guilt. However, proof beyond reasonable doubt requires only moral certainty or that degree of proof which produces conviction in an unprejudiced mind.” In the case of People of the Philippines v Jenny Tumambing y Tamayo, G.R No. 191261, March 2, 2011, the Supreme Court said that: “A successful prosecution of a criminal case action largely depends on proof of two things: 1. The identification of the author of the crime; and 2. His actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender’s identity. The constitutional presumption of innocence that an accused enjoys is not demolished by an identification that is full of uncertainties.” The testimony of Carlos Parlade is not convincing because when he said during the trial that he was just five meters away, and that he saw the man who pushed the tricycle as what he said in his affidavit but when the defense counsel asked him how far was his position from the tricycle he said that “Nang makita ko medyo malayo na ang tricycle na tinutulak ng isang Page 6 of 10/Violation of R.A 6539/The Pyramid Law Firm

tao”.

He also said in his affidavit that he was able to recognize the face of

the accused because the latter glanced back at him but when the defense counsel asked him that “Since the purpose of the man was to flee from you, he merely glanced backed, is that right?”, he answered “Hindi po, opo, medyo matagal po”, these statements are inconsistent with what he said in his affidavit, making his testimony not credible for being not sure as to what he really saw when the person pushed away his tricycle from his house. When Carlos Parlade informed by the police who arrested the accused and requested him to go to their station, the former went there and was able to see and identify the accused that the latter’s appearance and physical built is the same as the man who stole his tricycle, but during the trial, when the defense counsel asked him that, “Is his appearance and built now the same as when you saw him take the tricycle on November 21, 2003?”, he answered that “it seems he changed.” When the defense counsel asked him to read the item 14 of his affidavit which is the description of the built of the person whom he saw stole the tricycle, it says that, “Medyo malapad ng konte ang katawan at medyo maiksi ang buhok.”, the defense counsel was able to rebut this statement when he presented to the court the accused, and the latter is medium built only. The testimony of Mario Mankas is also unconvincing because when Carlos Parlade brought him to the police station to give his testimony, he said in his affidavit that he saw Carlos Parlade running after the tricycle but the tricycle was running very fast. He also said in paragraph 5 of his affidavit that “hindi ko gaanong namukhaan dahil nakayuko ako.”. When the defense counsel asked him as to what was abnormal about the body of the person who stole the tricycle, he answered “medyo maskulado, sir.” But when Carlos Parlade brought him to the police station to identify the accused, he was able Page 7 of 10/Violation of R.A 6539/The Pyramid Law Firm

to clearly identify the accused that the description of the latter’s body is not “medyo maskulado” but of medium built. The testimony of Zenny Aguirre is not sufficient to convict the suspect because she was not present when the incident happened. She merely based her testimony of what the accused told her that “he should not see that tricycle in their place”. Her testimony are inadmissible for being hearsay. Ergo, the accused is not guilty of the offense charged because the testimonies of the prosecution’s witnesses failed to establish the guilt beyond reasonable doubt of the accused.

Second Argument Based on the facts of this case, the constitutional rights of the accused were violated, when the police arrested him. Sections 12 and 14 (1) and (2), Article 3 of the 1987 constitution provides: “Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” “Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.”

In the case of Morales, Jr. vs. Enrile, et al. G.R. No. L-61016 April 26, 1983, the Supreme Court laid down the procedure to be followed in custodial investigations, to wit: Page 8 of 10/Violation of R.A 6539/The Pyramid Law Firm

“At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.” In the case at bar, when the accused was arrested by the police, he was not informed of any of his constitutional rights as what the former said during the trial that “I was awakened by the police who took me”. When the police arrested the accused, the police was not even armed with warrant of arrest. The accused was not afforded with due process of law provided in the constitution.

Prayer WHEREFORE, premise considered, it is most respectfully prayed before this Honorable Court that the accused be acquitted of the offense charged.

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Atty. Al-Rhazer Saipudin Nulmasa Counsel for the accused The Pyramid Law Firm

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