Sample Trial Memorandum

Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region BRANCH 67 Pasig City

PEOPLE OF THE PHILIPPINES, Plaintiff, CRIMINAL CASE NO. 1234 -versusFOR: Violation of R.A. 6739 (Anti-Carnapping Act)

ROMULO TAKAD, Defendant, x---------------------------------/

MEMORANDUM COME NOW DEFENDANT, through the undersigned counsel, unto this Honorable Court most respectfully submit this Memorandum in the above-entitled case and aver that: PREFATORY STATEMENT The prosecution failed to establish ownership of the vehicle subject of this case and to present clear and convincing evidence to prove beyond a reasonable doubt that the defendant herein named committed the offense as charged. STATEMENT OF THE CASE A complaint was filed by Zenny Aguirre on November 22, 2003 as the duly authorized representative of Bayan Development Corporation, BDC for brevity, against Romulo Takad for willful violation of R.A. 6739, otherwise known as the Anti-Carnapping Act of 1972.

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STATEMENT OF THE FACTS On May 2003, the Bayan Development Corporation (BDC), represented by its Account Officer Zenny Aguirre (Aguirre), extended a group loan to SCCPPTODA 2 amounting to 480,000.00 pesos, evidenced by a promissory note, chattel mortgage and Kasunduan to that effect. Ma. Teresa Lacsamana (Lacsamana) was one of the “borrowers” in this transaction and received a share of 80,000.00 pesos. After the loan was granted, BDC released the tricycle to Lacsamana, who was accompanied by her live-in partner Romulo Takad (Takad). The Land Transportation Office (LTO) Official Receipt and Car Registration were in the name of Lacsamana. The loan was to be paid within a period of thirty months. However, Lacsamana failed to comply with her obligation. Her last payment was for the month of July 2003. Upon her default, BDC repossessed the tricycle on October 2, 2003 by virtue of the authority granted to it by the aforementioned Kasunduan. Lacsamana requested for more time to pay the balance of the loan, but her request was denied by BDC. There was no court order authorizing either the transfer of ownership or repossession of the tricycle. The vehicle was then given to Ricardo Marasigan, the treasurer of the group, for management. During this period, BDC allowed Lacsamana to redeem the tricycle by paying the arrears on or before October 17, 2003. However, she again failed to do so. On October 22, 2003, Lacsamana and Takad went to the office of BDC. They offered to pay the outstanding balance and redeem the tricycle. However, BDC refused their offer. According to Aguirre, Takad replied by saying, “Wag na wag kung makikita „yan sa Pasig!” However, according to Takad and Lacsamana, he simply pleaded with Aguirre, hoping that he could avoid seeing the tricycle and hurting his feelings. On November 20, 2003, the tricycle was given to the new assignee Carlos Parlade (Parlade), who also resided within Pasig City. 2

On or about 1 o’clock in the morning of November 21, 2003, Parlade came home and changed his clothes. When he returned outside to chain the tricycle, he saw it being pushed away at a distance of about 5 meters from his home. The shocked Parlade shouted at the person pushing the tricycle. Under the illumination of a big streetlight, the carnapper turned and faced Parlade, kick-started the tricycle, and drove away at about twice the usual speed of other tricycles. During his flight, he passed Mario Mankas (Mankas), a neighbor and acquaintance of Parlade, who was bent over while washing his hands. Because of his position, he could not clearly see the face of the carnapper, but he could reasonably identify the build of his body. On 7 o’clock in the morning of the same day, Parlade informed BDC, through Aguirre, of the aforementioned carnapping. During the day, Aguirre, Parlade and Mankas gave their statements to the police. Takad was arrested and subsequently identified by both Parlade and Mankas as the carnapper. However, the accused claims that he could not have committed the crime as he was peacefully sleeping alone in his home on the night of the incident, seeing as his live-in partner Lacsamana was currently in Singapore. ISSUE Based on the facts of the case, is the accused Romulo Takad liable for violation of R.A. 6739? ARGUMENTS THE ACCUSED IS NOT LIABLE FOR VIOLATION OF R.A. 6739 Carnapping is defined by the law as the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things.1

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Section 2, R.A. 6739

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More specifically, the elements of the crime are as follows: 1. That there is an actual taking of the vehicle; 2. That the offender intends to gain from the taking of the vehicle; 3. That the vehicle belongs to a person other than the offender himself; 4. That the taking was without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things. A careful examination of the evidence presented shows that the prosecution failed to prove that all the elements of the crime of carnapping are present in this case. Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal act and hence presumed from the unlawful taking of the vehicle. Unlawful taking is the taking of the vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. I.

Bayan Development Corporation (BDC) is not the owner of the tricycle accused to have been carnapped by defendant.

In order to support conviction, the prosecution must be able to prove that all the elements of the crime charged are present in the case. As such, it is likewise important to discuss the ownership of the vehicle in connection with the third element stated above that the vehicle should belong to a person other than the offender himself. The contract entered into between BDC and Lacsamana is that of simple loan or mutuum. A person who receives a loan of money or other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount 4

of the same kind and quality based on Article 1953 of the New Civil Code. When BDC granted the loan to Lacsamana in the amount of P80,000.00, Lacsamana became the owner of said amount and has acquired the right to appropriate the same. Logically, the tricycle she acquired from the money is her property and not of BDC. Lacasama need only to pay BDC the same amount granted to her, including the stipulated interest if there is any. Ownership can also be deduced by the execution of Lacsamana of a chattel mortgage in favor of BDC, for if it was BDC who owns the said vehicle, the execution of the chattel mortgage would be futile. Upon default, BDC should have instituted a foreclosure proceeding of the chattel mortgage. Thus, repossession of the tricycle without the appropriate proceeding is illegal. The presence of the Kasunduan is of no moment because it only provides that in case of default, the tricycle shall be voluntarily delivered to the Treasurer of the group for management to ensure that all income derived from it shall be given to BDC as payment for the loan. It did not provide that upon default on certain installments, the tricycle could be immediately assigned to somebody else. In fact, Section 20.1 of the said document provided that “Hatakin ang tricycle o mga tricycle kasama ng linya (TODA) at/o prangkisa ng tiwaling kasapi na kabilang sa Chattel Mortgage Contract sa BDC.” It is clear then that the repossession should be in accordance with the Chattel Mortgage. The mortgagee may, after thirty (30) days from the time of the condition broken, cause the foreclosure of the mortgage and the mortgaged property be sold at public auction by a public officer. 2 II.

Lacsamana and Takad own the tricycle in coownership.

Although it was only Ma. Teresa Lacsamana, Takad’s common-law wife, who contracted the loan with BDC and the Land Transportation Office (LTO) Official Receipt and Car Registration were also in her name, Takad is considered as co-owner of the tricycle based on Article 147 of the Family Code. 2

Sec. 14, Act No. 1508

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“Art.147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work and industry shall be governed by the rules on coownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former‟s efforts consisted in the care and maintenance of the family and the household.” Thus, as co-owner, and assuming arguendo that it was really Takad who took the tricycle, he could not be validly convicted with the crime of carnapping as herein charged because he has in fact a right equal as that of Lacsamana. There is a presumption, absent any evidence to the contrary, that the properties owned by them during their cohabitation are acquired through their joint efforts. III. In the case at bar, notwithstanding the statements above and assuming arguendo, it should be noted both from the statements of the witnesses as shown on the court’s stenographic notes that they are not definite as to the identity of Takad as the carnapper. Zenny Aguirre only presumed that it was Takad who carnapped the vehicle due to the latter’s statement to the effect that, “Wag na wag kung makikita „yan sa Pasig!” However, the said statement cannot be taken as proof of the intent of Takad to do an unlawful act once he will see the vehicle in Pasig. Relative to this fact is her testimony during her cross-examination:

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“Q. MR. PARLADE TOLD YOU THAT HE SAW A MAN DRIVING AWAY WITH THE TRICYCLE, IS THAT RIGHT? A.

YES, SIR.

Q.

HE ALSO TOLD YOU THAT, UNFORTUNATELY, HE DID NOT RECOGNIZE THE MAN BECAUSE HE WAS DRIVING AWAY, IS THAT RIGHT?

A.

THEY DID NOT KNOW HIM BUT THEN HE RECOGNIZED HIM BECAUSE THEY FACED EACH OTHER.

Q.

BUT MR. PARLADE TOLD YOU THAT HE DID NOT KNOW THE ACCUSED TAKAD PERSONALLY?

A.

YES, SIR.

Q.

DID MR. PARLADE TELL YOU THAT HE WAS ABLE TO SEE THE MAN‟S APPEARANCE AS WELL AS HIS FACE?

A.

YES, SIR.

Q.

AND WHEN YOU HEARD FROM MR. PARLADE THAT THE TRICYCLE HAD BEEN STOELN, YOU THOUGHT RIGHT AWAY THAT IT WAS THE ACCUSED TAKAD WHO DID IT, IS THAT RIGHT?

A.

YES, SIR. THAT FORMED IN MY MIND.

Q.

YOU THOUGHT THAT THE THIEF WAS THE ACCUSED TAKAD BECAUSE HE WARNED YOU AGAINST HIS SEEING THE TRICYCLE IN PASIG, IS THAT RIGHT?

A.

YES, SIR.

Q.

AND YOU TOLD PARLADE ABOUT WHO YOU THOUGHT TOOK THE TRICYCLE, IS THAT RIGHT?

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A.

YES, SIR.

Q.

AND, BASED ON YOUR DESCRIPTION OF ACCUSED TAKAD, MR. PARLADE AGREED WITH YOU?

A.

YES, SIR.”

Additionally, Aguirre also testified to this effect: “Q. YOU SAID THAT, AFTER YOU REFUSED REDEMPTION OF THE TRICYCLE, ACCUSED TAKAD SAID, “WAG NA WAG KONG MAKIKITA ANG TRICYCLE NA „YAN SA PASIG”. AND IT WAS THIS REMARK THAT MADE YOU CONCLUDE THAT HE WAS THE ONE WHO STOLE THE TRICYCLE. IS THAT RIGHT? A.

YES, SIR.

Q.

ARE YOU SURE THAT HE SAID WAS, “WAG NA WAG KONG MAKIKITA ANG TRICYCLE NA „YAN SA PASIG.” THAT IS ALL HE SAID?

A.

YES, SIR.

Q.

DID HE SAY, IN ADDITION, “KUNG MAKIKITA KO „YAN SA PASIG, NANAKAWIN KO „YANG TRICYCLE NA „YAN.” DID HE SAY THAT?

A.

NO, SIR.

Q.

IF HE DID NOT SAY “KUNG MAKIKITA KO „YAN SA PASIG, NANAKAWIN KO „YANG TRICYCLE NA „YAN”, THE IDEA THAT HE MEANT TO STEAL THE TRICYCLE IS ONLY YOUR IDEA. IS THAT RIGHT?

A.

YES, SIR.

Q.

HE COULD HAVE VERY WELL MEANT THAT “KUNG MAKIKITA KO „YAN SA PASIG, IDEDEMANDA KO KAYO NG CARNAPPING DAHIL WALA KAYONG 8

KARAPATANG KUNIN ANG TRICYCLE SA KANYA. THAT IS WHAT HE COULD HAVE MEANT. IS THAT RIGHT? A.

MAYBE, SIR.”

Hence, speculations and probabilities cannot substitute for proof required to establish the guilt of the accused beyond reasonable doubt.3 In a criminal case, every circumstance favoring the innocence of the accused must be duly taken into account. 4 Subsequently, Carlos Parlade also testified as shown on the transcript of stenographic notes taken at the hearing on January 27, 2004, stating among others that: “Q. YOU SAID IN YOUR SWORN STATEMENT THAT YOU ARE A MEMBER OF THE MAYBUNGA SECURITY FORCE, IS THAT RIGHT?

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A.

YES, SIR.

Q.

YOUR WORK INVOLVED LOOKING FOR PERSONS WHO COMMIT CRIMES IN YOUR BARANGAY, IS THAT RIGHT?

A.

YES, SIR.

Q.

WERE YOU AWARE THEN THAT IT WAS IMPORTANT FOR YOU, AS A WITNESS TO A CRIME, TO GIVE A GOOD DESCRIPTION OF THE PERSON WHOM YOU SAW STOLE YOUR TRICYCLE?

A.

YES, SIR.

Q.

YOU SAID THAT YOU SAW HIS FACE. DID YOU SEE IT CLEARLY?

A.

YES, SIR.

People v. Isla, 343 Phil. 562, 570 [1997], citing People v. Jumao-as, 230 SCRA 70 [1994]. People v. Sinatao, 319 Phil. 665, 687 [1995].

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Q.

DID YOU NOTE THAT HE HAD FAIR OR LIGHT COMPLEXION?

A.

YES, SIR.

Q.

YOU ALSO NATURALLY NOTED THAT HE HAD SHORT CROP HAIR, IS THAT RIGHT?

A.

YES, SIR.

Q.

YOU ALSO NOTICED THAT HE HAD PRONOUNCED JAWS?

A.

YES, SIR.

Q.

BUT, ALTHOUGH YOU NOTED THESE DETAILS OF HIS FACE, YOU STILL DID NOT TELL THE POLICE WHEN YOU REPORTED THE CRIME THAT HE HAD FAIR OR LIGHT COMPLEXION, IS THAT RIGHT?

A.

BECAUSE THE POLICE DID NOT ASK ME THOSE DETAILS.

Q.

BUT, SINCE YOU KNEW BECAUSE OF YOUR EXPERIENCE THAT THOSE DETAILS WERE IMPORTANT TO THE POLICE, WHEN YOU WERE NOT ASKED, YOU DID NOT BOTHER TO STILL GIVE THE POLICE YOUR DESCRIPTION OF THE FACE OF THIS PERSON?

A.

I WAS NOT ABLE TO REMEMBER THOSE.

Q.

PLEASE GO OVER YOUR SWORN STATEMENT AND TELL US IF YOU GAVE TO THE POLICE THOSE DESCRIPTIONS OF THE ACCUSED THAT YOU MENTIONED?

A.

I SAID HERE, IN ANSWER TO #14, “MEDYO MAIGSI AND BUHOK.”

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Q.

BUT THE OTHER DESCRIPTION THAT HE IS OF LIGHT COMPLEXION AND HAS PRONOUNCED JAWS, DID YOU PUT THAT IN YOUR STATEMENT?

A.

NO, SIR.”

Consequently, Parlade also testified that: “Q: YOU SAID THAT, AS YOU WENT OUT OF YOUR HOUSE, YOU SAW THE ACCUSED PUSHING THE TRICYCLE AWAY, IS THAT RIGHT? A.

YES, SIR.

Q.

NOW, YOU SAID THAT WHEN YOU SAW THE ACCUSED WITH THE TRICYCLE, HE WAS FIVE METERS FROM YOU, IS THAT RIGHT?

A.

YES, SIR.

Q.

IN OTHER WORDS, HE WAS SOMEWHAT NEAR YOU?

A.

YES, SIR, “MEDYO MALAPIT SIYA.”

Q.

NOW, YOU SAID “MEDYO MALAPIT SIYA,” PLEASE READ WHAT YOU SAID IN YOU SWORN STATEMENT ABOUT THE DISTANCE OF THE ACCUSED FROM YOU AT THE TIME.

A.

“NANG MAKITA KO MEDYO MALAYO NA ANG TRICYCLE NA ITINUTULAK NG ISANG TAO.”

Q.

YOU SAID WHEN YOU TESTIFIED THAT HE WAS “MEDYO MALAPIT” BUT YOU SAID IN YOUR AFFIDAVIT, “MEDYO MALAYO,” WHICH IS CORRECT?

A.

I SAID HE WAS A BIT FAR BECAUSE HE WAS FIVE METERS FROM ME.

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Q.

YOU SAID THAT YOU SHOUTED AT THE MAN ON THE TRICYCLE AND HE LOOKED BACK BUT HE SUDDENLY STARTED THE MOTOR AND DROVE AWAY WITH THE TRICYCLE, IS THAT RIGHT?

A.

YES, SIR.

Q.

SINCE THE PURPOSE OF THE MAN WAS TO FLEE FROM YOU, HE MERELY GLANCED BACK, IS THAT RIGHT?

A.

HINDI PO, OPO, MEDYO MATAGAL PO.

Q.

OPO, HINDI PO, WHAT IS REALLY YOUR ANSWER?

A.

OPO, MEDYO MATAGAL PO.”

Inconsistencies on the affidavit and the testimonies given in the court as shown above are apparent. More so, these circumstances would lead us to the conclusion that Parlade wasn’t sure himself if it was indeed the accused Takad he saw pushing the tricycle away. On the other hand, the other witness presented by the prosecution was Mario Mankas. He said that after he finish playing computer in a neighbor’s house and while washing his hands at the gate in the front yard, he saw Parlade running after a tricycle. He also added that because the tricycle was running at a very fast speed, he had only a brief glance of the driver. Said witness also stated in paragraph 5 of his affidavit that “hindi ko gaanong namukhaan dahil nakayuko ako.” In fact, the man driving the tricycle away did not move but just sat still holding the steering bars of the tricycle according to him. Additionally, Mankas also said that the he was able to identify the accused because of the shape of his body. However, there is no notable distinction in the body shape of the accused, such that of a hunchback, in order to merit his identification apart from the others who has the same body built just like his. IV. There was also failure to have a police lineup during the time Parlade and Mankas identified Takad as the one who carnapped the vehicle. 12

Although police lineup is not a mandatory requirement in the court rules, said lineup is crucial in the identification of the carnapper in this case because of the inconsistencies in the identification of the accused. If only a fair police lineup was conducted, there is a possibility of the witnesses not to point Takad as the culprit. It could also disprove the assumption of influence brought in the mind of Parlade and Makas due to the presumption of Aguirre that Takad committed the crime. However, no such thing was conducted in this case. V.

The vehicle subject of this case, which is a tricycle, was never recovered in the hands of Takad. Its location is still in question.

The tricycle accused to have been carnapped by the defensant was never recovered in his possession. Neither any evidence was presented to prove that the tricycle came to his possession after it was repossessed by BDC. In light of the prosecution’s evidence, this honorable court should not be convinced that the guilt of the accused has been proved beyond reasonable doubt. “The rule is clear. The guilt of the accused must be proved beyond reasonable doubt. The prosecution, on its part, must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. The slightest possibility of an innocent man being convicted for an offense he has never committed, let alone when no less than the capital punishment is imposed, would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated.” 5 “On the whole then, the scanty evidence for the prosecution casts serious doubts as to the guilt of the accused. It does not pass the test of moral certainty and is insufficient to rebut the presumption of innocence which the Bill of Rights guarantees the accused. It is apropos to repeat the doctrine that an accusation is not, according to the fundamental law, synonymous with guilt; the prosecution must overthrow the

5

People v. Manzano, 227 SCRA 780, 787 [1993].

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presumption of innocence with proof of guilt beyond reasonable doubt.” 6 VI. The defendant on the other hand contends that he was at home sleeping during the time the crime was committed and was only awakened by the police who arrested him. It has been held that if there is doubt as to whether the defendant is or is not the person who committed an act, the existence or non-existence of a motive for the doing of the act is a circumstantial evidence leading to the inference that he is or is not the author of the act done. 7 Hence, where the evidence is purely circumstantial, there must be an even greater need to apply the rule that the prosecution depends not on the weakness of the defense but on the strength of its own evidence. Conviction must rest on nothing less than a moral certainty of the guilt of the accused. “For circumstantial evidence to convict, the Rules of Court require that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Based on jurisprudence, it expound that the circumstantial evidence presented and proved must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person.” 8 Granting that the defense of alibi was indeed weak, the fact alone does not justify the judgment of conviction. The burden of proof in cases is on the prosecution. 9 Failing in its task to prove the guilt of the accused beyond reasonable doubt, the prosecution cannot rely on the weakness of the defense to secure a conviction. 10

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People v. Dismuke, 234 SCRA 51, 61 [1994], citing People v. Dramayo, 149 Phil. 107 [1971]; People v. Garcia, 215 SCRA 349 [1992]. 7 U.S. v. McMann, 4 Phil. 561 (1905) 8 People v. Santos, 333 SCRA 319, 336 [2000]. 9 Rule 131, Sec. 2 10 People v. Ola, L-47147 (July 3, 1987); People v. Formentera, L-30892 (June 29, 1984), 130 SCRA 114; People v. Somontao, L-45366-68 (March 27, 1984), 128 SCRA 415; Duran v. CA, L-39758 (May 7, 1976), 71 SCRA 68.

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PRAYER WHEREFORE, in consideration of the foregoing, it is respectfully prayed that judgment be rendered in favor of defendant and against the plaintiff by: FINDING Romulo Takad not liable for the commission of the crime of carnapping as defined in R.A. 6739. Respectfully submitted. Pasig City, Philippines, this 8th day of June 2004. By: ATTY. JAMAICA MAGLINTE-DACUTANAN Counsel for the Defendant IBP Lifetime No. 12345;5/10/2005 PTR No. 123456; 8/1/2013 Roll of Attorney No. 2003-654321 MCLE Compliance No. III – 987654

Copy furnished: Atty. Jason Oliver Sun Counsel for the Plaintiff SUN LABASTIDA GORDONAS AND ASSOCIATES Manila, Philippines Hon. Truce Salvador City Prosecutor Palace of Justice Pasig City The Branch Clerk of Court RTC, Branch 67 Pasig City Kindly submit this memorandum for the consideration of the Honorable Court immediately upon receipt hereof. 15