A MEMORANDUM THAT WON AN APPEAL AT COURT OF APPEALS


A MEMORANDUM THAT WON 
AN APPEAL AT COURT OF APPEALS


To those who are minded to read the wisdom behind my style of arguing for the cases of my clients, I am posting this WINNING MEMORANDUM.

You will learn from me, for sure.

The Winning Memorandum is posted below:

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Republic of the Philippines
Court of Appeals
Manila

RANDEL TORRES y MAGALONA,
Petitioner,


-versus-                                             C.A.-G.R. CR No. 34934


PEOPLE OF THE PHILIPPINES,
Respondent.
x-------------------------------------------x
RANDEL TORRES y MAGALONA
and ROWENA y BONDOC,
Petitioners,

-versus-                                            

PEOPLE OF THE PHILIPPINES,
Respondent.
x---------------------------------------x


Memorandum


The petitioner, by the undersigned counsel, respectfully submits this Memorandum.



The Prologue


            Why will a man run away from a melee he is involved in? 

This is the question of indispensable importance in this case.   In attempting to answer this, it needs to analyze circumstances often happening as a human experience.

In a rumble among frat men, those young men who run away are either: (a) overwhelmed by fear; (b) having committed a serious crime of murder or homicide or serious physical injury upon an opponent; or (c) because police officers arrived to cause the arrest.

This is the natural behavior of any person placed in a similar situation.

            In the instant case, one thing is undisputed: Accused Randel Torres ran away.

            What was the cause of his running away?

            There was no policeman. There was no murder.  There was no homicide.  There was no serious physical injury.

            As such, the only reason is: FEAR.

            So that if the only possible reason left is FEAR, what was that fear all about?  What caused the fear?

            The answer can be found by retracing all the testimonies of witnesses from both sides as to what happened prior to the running away.

If we were to consider only the testimonies of the prosecution, not one allegation of any prosecution witness can jibe with to explain why accused Randel Torres ran away.

If we were to consider the testimonies of the defense witnesses, their consistent collaborating testimonies that Roberto Cruz alias Obet Kabayo poked a gun and fired it at Randel Torres are the only version of the story that can explain why accused Randel Torres ran away.

            These are discussed further below to know whether the court a quo and the Regional Trial Court are correct in giving belief to the claims of the prosecution witnesses.

            Amazingly, the conclusion will show:  THE PROSECUTION WITNESSES LIED TO THEIR TEETH.

            So that it is incorrect for both the Metropolitan Trial Court of Manila and the Regional Trial Court of Manila in believing in the testimonies of the witnesses of the prosecution.


The Facts

           
            In narrating the facts based on the claims of respective witnesses, comments or remarks are placed in italics and enclosed by brackets.

            [The impossible story of private complainant Eilleen D. Cruz (Eileen, for brevity) that was strongly denied by the petitioner is that, for no reason at all and without explaining what was the motive. ]

According to Eileen, for no reason at all she was pushed by accused-petitioner Rowena Torres (Rowena, for brevity).  The push, she said, nearly caused the baby she was carrying to fall off her hands.   [Can it happen that one would just attack anybody without any reason or motive? It is contrary to human experience to assault somebody without any reason at all.  For not submitting any proof of motive this claim should not be given any credence. ]

At this juncture, Eileen said she then turned her head toward the direction of her back.  She added that at this point she saw petitioner-accused Randel Torres (Randel, for brevity) smashing a chair on her forehead.   [Can this happen when there is no evidence of any motive on the part of accused-petitioner Randel Torres?   All throughout the hearing no evidence of motive on the part of Rowena and Randel was presented.  For this, these cannot be given weight.]

Eileen continued that this smashing caused her reading glass to crash to the ground.   She claimed further there was no damage on her reading glass.  That reading glass has never been presented to the court.  [This is unbelievable.  The nature of life is that it is most likely that the reading glasses would break into pieces.]

Eileen also never said what happened to her child while she was being hit by a smash of the chair.  [Is it possible to happen that nothing bad happened to the child?]

At that juncture, Eileen claimed she handed her baby to her sister-in-law Mariedel Villegas to avoid harm on the child. 

After saying she was smashed with a chair on the forehead, Eileen claimed she engaged Rowena and Randel in a brawl. [Two against one? Was she brave that she could stand against two?  Is this not consistent with the later claim that she feared Randel for allegedly issuing threats?]

In that ensuing melee, Eileen also claimed that Randel’s wife Rowena pulled her hair.  Eileen did not say what was the participation of Randel while Eileen was engaging Rowena in pulling of hairs.   She never told where Randel was at that time or what happened to the alleged unreasonable rage of Randel or what Randel did after smashing of the monobloc chair.  [If Randel indeed smashed a chair on Eileen he must be still in rage to continue the assault.  But Eileen never said about what Randel did while she was battling it out with Rowena?  The inaction is impossible in the nature of man under unreasonable rage and more on a man who was allegedly feared by the private complainant.]

            Eileen also claimed that while fighting against Randel and Rowena, Eileen was having a “pambuno” only with Rowena on the road.  [The inconsistency of the story compared to human experience is noticeable.]

Thereafter, Eileen claimed that Randy, brother of Rowena, embraced her.  [This is unbelievable because in the first place Eileen never filed any case against him. Eileen never explained why she spared Randy from the cases.]

Eileen claimed she was fighting against Randel and Rowena but she never said what did her in-law Mariedel Villegas do to help Eileen while Eileen was battling with Randel and Rowena.   [This is against the nature of man to just leave your sister-in-law fighting alone against three persons, including Randy.]

            Eileen claimed that while having “pambuno” with Rowena (or whether Randel was also grappling with her is confusing), Eileen claimed she heard Randy hurl invectives and that Randy was calling for backup.  She never said what words were uttered to constitute the invectives.  [This is again unbelievable compared to human experience.  Why call for a backup when the fight appeared to be one (1) against three (3)?  Why she cannot specifically state what invectives uttered by Randy.]

            Eileen also claimed she saw Randel in the act of smashing on her a chair (second time of smashing the chair?).  She claimed she parried away the smash and it instead hit Paul.   She never said where Paul was hit.  She never said Paul filed a case against Randel.   [This again is clearly unbelievable.  Eileen did not say specifically how it happened she managed to parry away the smash as if she acted like “superwoman” and where was Paul hit.]

At this point, Eileen claimed that Randel ran away. [Why ran away when the battle is one against three? It is against human nature to speak that the petitioner ran away when the battle is against one and a woman at that. Impossible! This is the nail the nailed to coffin of obvious lies for Eileen.]

            Eileen claimed Randel shouted “Putang ina ninyo! Babalikan ko kayo! Papatayin ko kayong lahat” while he was running away.  [Why will Randel run away when his wife Rowena was having a brawl with Eileen?  Having shown there was no reason to run away if we were to believe in Eileen, it cannot now be believed in that Randel ran away and issued threatening words. In the first place, it is not clear as to whom these “kayo” was referred to.  Was it for Eileen alone?  This story is therefore impossible to happen in this situation.  Human nature tells us that a man runs away from a fight is he who is outnumbered or feels impossibility to win.  But it is impossible to lose when the street fight is one against two or three, or when the street fight is between a man and a woman on one team and one woman in the other team.] 

Moreover, Eileen did not mention that all of the witnesses she presented were present when the alleged brawl and running-away incidents occurred.   She also did not say in her narration that her mother Bernardita Cruz was watching her fight with Rowena and Randel or when Randy embraced her during the brawl.   She also did not explain why her mother did not join the fight when natural law dictates that no mother can stomach watching a daughter being mauled. [Thus, it is clearly unbelievable for this claim to happen.]

            Eileen did not present the doctor who allegedly examined her to state what the injuries were, to explain if the injuries were indeed caused by a plastic chair, and to state the findings as to how many days that Eileen would suffer incapacitated to labor or would need to undergo medication that are the elements of slight physical injuries.   [It is therefore very clear that the stories of Eileen are unbelievable.  This constituted a reasonable doubt whether it was the accused who also caused her alleged injuries.]

            She also did not present medical proof of injuries due to acts of pulling, pushing, and “pambuno”, or wrestling, or punching, or scratching that is common to a women’s fight.  [If Eileen’s medical certificate does not show injuries other than on the forehead, then it follows that it was false for her to tell a story that her hairs were pulled, that she was pushed, that she was punched, that she was scratched and that she wrestled with.]

            Prosecution Witness Mariedel Villegas

            Eileen’s witness, Mariedel Villegas (Mariedel, for brevity), executed a “Sinumpaang Salaysay” and testified also in court.

            Mariedel said that at 5:30 p.m. of March 23, 2006 she was eating and exchanging pleasantries with her family at their house.  From there, she said she noticed Eileen carrying her four-month-old baby while going out of Eileen’s house and proceeding to a nearby store to pay for the “halo-halo” Eileen bought from there. 

            Mariedel said that a few minutes later Eileen approached her and handed to her son to Mariedel.  At this point, Mariedel said she noticed a lump on the forehead of Eileen. 

            [It must be stressed that at this point, it is as if Mariedel was narrating about events that occurred after the time that Eileen said she was smashed with a monobloc chair by accused-petitioner Randel.   But if these testimonies of Mariedel were compared to the testimonies of Eileen, there difference is glaring and diametrical against each other.  For one, Eileen’s testimonies claim that there was no interval of peace from the time Eileen was “pushed” by Rowena and smashed with a monobloc chair; but in this story of Mariedel, it is clear that Eilen was cool and was even paying her debts to the sari-sari store on the “halo-halo” she bought.  This alone must be enough to discredit the stories of Eileen.   If indeed Eileen already had a lump on her forehead at that time she was seen by Mariedel, it is also possible that there was no altercation yet that took place when the lump injury was seen by Mariedel and that the coolness in walking to the sari-sari store and the paying of “halo-halo” can support the theory that prior the commotion the lump in the forehead was already there. ] 

            Mariedel said that what happened after noticing the lump on the forehead of Eileen, Mariedel put the child down and she followed Eileen.  Mariedel said that along the way Eileen chanced upon accused-petitioner Randel holding a chair.  Mariedel claimed that Randel then rushed toward Eileen having an altercation with Rowena. Mariedel fourth claimed that at this point Mariedel told Randel to pacify Eileen and Rowena but that instead Randel threw invectives at “her” (without clarifying who was referred to as “her”) and threatened “them” (without saying who were referred to as “them”).  Mariedel said that at this juncture accused-petitioner Randel hurled the chair against Eileen and fled while shouting “PUTANG INA NINYO!!! BABALIKAN KO KAYO!!! PAPATAYIN KO KAYONG LAHAT!!!. 

[ Now, Mariedel added confusion.  Was the chair indeed smashed on Elieen?  In Mariedel’s version, she said that the chair was HURLED AT EILEEN.   In Eileen’s testimony, she said that the chair was smashed at her when Eileen turned toward her back.  One thing is certain until here: THE DOUBT BECOMES CLEAR THAT ACCUSED RANDEL DID NOT SMASH THE CHAIR ON EILEEN.)

            Prosecution Witness Bernardita David Cruz

            Prosecution witness Bernardita David Cruz (Bernardita, for brevity), mother of Eileen, executed Sinumpaang Salaysay and testified in court.

            Bernardita claimed that at 5:30 in the afternoon of March 23, 2006, she was inside her house when she saw Mariedel and Paul Anthony Villegas (Paul, for brevity) rushing out of their house while her grandson Justine (was this the four-year-old baby of Eileen?) was left inside.  Curious, Benardita said she also left their house and she saw Randel holding a chair and rushing toward Rowena who, at that time, was in an altercation with Eileen.  Bernardita said that Randel attempted to hit Eileen with the chair but Eileen was able to evade and thereafter Randel fled while threatening them.

            [The plot to lie becomes clear with the testimonies of Bernardita.  For her part, Bernardita claimed that Randel attempted to hit Eileen with the chair but that Eileen was not hit.   If Eileen was not hit, that means that the lump on the forehead of Eileen was already there before the altercation occurred.   Also, Bernardita’s version said that it was only Mariedl and Paul who were rushing out of the house and she did not see her daughter Eileen.  This therefore contradicted Mariedel’s testimony and Eileen’s testimony on material points.]

            Prosecution Witness Paul Anthony Villegas

            The testimony of Paul Anthony Villegas was stipulated upon as corroborative in nature so that he was dispensed with.

            Defense Witness Rowena Torres

            Rowena said that on March 23, 2006 she went out of their home at 1953-E Juan Luna St., Tondo, Manila and she accidentally bumped Eilleen at a nearby carinderia.  She said this angered Eileen who was then carrying her four-month old son.  Because of that bump, Rowena said that Eileen threw invectives at her.   After that, Rowena said that Eileen called her sister-in-law Mariedel and handed the baby to Mariedel.  After handing the baby to Mariedel, Rowena said that Eileen pulled the hair of Rowena. At that instance, Rowena said that Mariedel called her brother, Paul Anthony Villegas, who joined the melee and ganged up on Rowena.

            Rowena said that her husband Randel came to pacify. Instead, she said that Randel was boxed by Paul Anthony.   At that instance, Rowena said that Bernardita, the mother of Eileen, came held the hands of Randel.  

Thereafter, Rowena said that the father of the complainant, Roberto Cruz alias “Obet Kabayo,” pulled out a gun from a brown towel and poked it at Randel.
           
At the same time, Rowena said she was trying to free herself from the grip of Eileen and Mariedel while she was being kicked and her hairs were being pulled.   Rowena said that Obet Kabayo, the father of Eileen, then fired his gun twice and she saw her husband Randel Rowena running toward the corner while being chased.  After that, Rowena said that she and her husband were threatened not to set foot on the said place or not to think of leaving their house. 

[Without saying whether these testimonies of Rowena are true, analysis will show that all what she narrated, particularly the flow of the story, are consistent with human experience.  Further, the story of Rowena that the father of Eileen fired the gun on Randel is consistent with the nature of man to run away.   As such, the declarations of Rowena are more consistent with the nature of man.]

The prosecution did not cross-examine Rowena.  [This amounted to the prosecution admitting all the testimonies of Rowena, which testimonies, after all, are consistent with the possible reason why Randel ran away and coherent with the natural behavior of man.]

Defense Witness Randel Torres

Randel Torres executed Sinumpaang Salaysay and “Pinagsamang Kontra-Salaysay” and affirmed the contents during his testimonies.

During the cross-exam, Randel insisted it was not true that he inflicted injuries on Eileen and he also did not threaten her.  Randel said that there was a heated argument between his wife Rowena and Eileen.  He also insisted that the instant charges were only counter-charges because he filed a complaint for attempted homicide against Obet Kabayo, the father of Eileen.

During the re-direct, Randel said that Rowena was ganged up by Paul, Marediel and Bernardita and this was witnessed by several neighbours.  Randel said that when he attempted to intervene to pacify he was mauled by Bernardita and Paul.

Upon re-cross, Randel said that Kagawad Roberto Cruz alias Obet Kabayo pulled out a gun from a towel and fired it at him but the bullet missed and Randel was able to escape.

He said he did not know the reason why the complaint for attempted homicide that he filed against Roberto was dismissed.

[Looking at his testimonies, these are consistent with the testimonies of his wife Rowena and also consistent with nature.  At the same time, the flow of the thoughts of his testimonies is coherent, ending with him running away.  The story of Randel is appropriate as the explanation why he ran away.]
Defense Witness Rowena Aguilar Waniwan

Witness Rowena Aguilar Waniwan (Waniwan, for brevity) executed Pinagsamang Salaysay Pag-Testigo and confirmed the contents therein.

Waniwan said that she saw Eileen starting the altercation with Rowena. Waniwan said that after Randel witnessed the incident, Randel tried to intervene to pacify.  Not long after this, Waniwan said he saw Kagawad Roberto Cruz alias “Obet Kambing,” the father of Eileen, approached Eileen, Rowena and Randel while Roberto was carrying in his hand a brown towel that turned out to be covering a gun.  Waniwan added that Roberto then fired the gun at Randel.

During the cross-examination, Waniwan said that she witnessed Kagawad Roberto attempting to kill Randel.  She said there is nothing in her affidavit that she state that she witnessed Rowena and Randel threatened and inflicted bodily injuries on Eileen.

[Again, the testimonies of Waniwan is consistent with the plausible explanation why Randel ran away.  She corroborated the testimonies of Rowena and Randel although Waniwan was not present in court when Randel and Rowena testified.]

Defense Witness Marivic Aguilar

Marivic Aguilar (Marivic, for brevity) executed Pinagsamang Sinumpaang Salaysay Pag-Testigo.

Marivic said that on March 23, 2006 she was standing outside her house when she saw Rowena and Eileen in an altercation.  Thereafter, Marivic said she saw Randel approach and try to pacify the two.  Marivic added that Paul Villegas then approached Randel and hit Randel on the nape.  Thereafter, Marivic said she saw Obet Kambing attempting to kill Randel by surprising the latter with a shout: “PUTANG INA MO PAPATAYIN KITA, KATAGAL KA NG NAMUMURO SA AKIN, PUTANG INA MO.”  Then, Marivic said, Obet poked his gun on Randel. But before Obet could fire the gun, Randel ran away, thereby evading the bullets fired by Obet.  Marivic further said that she did not hear or see Randel inflicting any injury or threatening Eileen. 

During the cross-examination, Marivic said that the confrontation at first was only between Eileen and Rowena.  She repeated that thereafter Randel approached to pacify the two women.  After that, Marivic said, Paul Villegas came and hit Randel from behind.  Marivic also said that it was not true that Randel hit Eileen with a chair because there was no plastic chair in the vicinity.  Marivic also said that after failing to kill Randel, a case was filed against Kagawad Roberto Cruz but she did not know what happened with the case.

[Again, the testimonies of Marivic were consistent with human experience, consistent with the testimonies of the first witnesses of the defense, coherent on the basis of human logic, straightforward and a plausible explanation, too, why Randel ran away.  That is despite the fact that she was not around when the earlier witnesses testified.]

These testimonies restated here were culled from the Decision of the Metropolitan Trial Court of Manila, Branch 3.

Nevertheless, they are vivid enough to show that the prosecution witnesses are testifying on lies.

The Issues


1.     The Honorable RTC erred in ruling that presumption of regularity of the certificate to file action was sufficient to overcome the presumption of innocence;

2.     The Honorable RTC erred in giving presumption of regularity in the certificate to file action when there is no proof of compliance with the procedures required by the law on Lupon ng Tagapamayapa or Katarungang Pambarangay;

3.     The Honorable RTC erred in adopting the purported certificate to file action as the evidence for the prosecution when that certificate to file action was actually issued for the complaint of the accused against the private complainant and her cohorts in a separate complaint;

4.     The Honorable RTC erred in affirming the conviction for slight physical injuries when there is no proof offered for the existence of “incapacity to labor”;

5.     The Honorable RTC erred in affirming the conviction for slight physical injuries when there is no proof offered who actually committed the act of hitting the monobloc chair on the private complainant;

6.     The Honorable RTC erred in not crediting the finding of the trial court a quo that there was no intention to commit the threat, such that it should be an evidence of lack of malice;

7.     The Honorable RTC erred in not noticing the evidence of lack of malice from allegations itself of the criminal information of other light threats;

8.     The Honorable RTC erred in violating the constitutional rights to due process and against double jeopardy;

9.     The Honorable RTC erred in assuming the facts by the prosecution were true, there is no evidence that the accused be meted the harsh penalty, but mere fines should be enough; and

10.            The Honorable RTC erred in ruling that the inconsistencies and the lack of corroboration as well as the inconsistencies with the habit of life are not sufficient to overturn the findings of facts.  


Discussions


Error No. 1

Can the presumption of innocence be defeated by another presumption that is the presumption of regularity in the issuance of the certificate to file action?

This is the crux of the first cited error.

In its Decision and Order denying the motion for reconsideration, the Honorable Court rejected the defense theory that the accused should be acquitted because the certificate to file action issued by the barangay was not issued on the basis of compliance with the requirements.

The Honorable Court relied heavily on the mistaken belief in the presumption of regularity of the certificate to file action.

It is highly anomalous.

The presumption of innocence cannot be defeated by another presumption. The prosecution must go beyond the presumption to cross over the bar of the presumption of innocence.

The presumption of regularity in the performance of official function can galvanize into a higher degree of proof if it is not questioned.

But when the certificate to file action was questioned as in this case, the question must have been enough to create doubt.

As such, to remove the doubt is the burden of proof on the one relying on the presumption of the certificate to file action.

Sadly, the prosecution did not even attempt to give explanation to answer the questions raised by the defense.

An explanation or proofs of compliance with the procedures laid down by law should be presented to galvanize the presumption into a conclusive proof of compliance with the procedures laid down by law.

The lack of explanation made the presumption of regularity of the certificate to file action fail to overcome the bar of the presumption of innocence.

This is the essence of due process and the essence of the constitutional presumption of innocence.

The presumption of innocence is vested by the Highest Law of the land that is the Constitution.

Whereas, the presumption of regularity merely proceeds from the Rules of Evidence that CANNOT BE HIGHER than the Constitution.

Now, it is not in dispute that the only evidence offered as to compliance with the Lupon ng Tagapamayapa or Katarungang Pambarangay law is a mere certificate.

Ergo, by this alone the instant criminal cases charged against the accused must fail.

Moreover, WHY SHOULD PRESUMPTION BE ATTACHED to the certificate to file action when it was issued for accused Randel and Rowena because they were the only ones who filed a complaint before the barangay?

First, it is very clear that the same certificate was issued by the Barangay Chairman in favor of Randel Magalona Torres and Rowena Bondoc Torres.

Simply, it meant that accused Randel and Rowena went to the Barangay and respected the authority of the barangay lupon under Republic Act 7160.

Second, it is also very clear that the same certificate was not issued for the private complainant.

For why should there be a certificate to be offered in favor of the private complainant when THE COMPLAINANT HERSELF DID NOT RESPECT THE BARANGAY?

Why should the certificate be given the presumption in favor of the person who did not even respect the barangay proceedings and did not seek the barangay intervention?

Can the person who rejected the barangay remedies be permitted to benefit from the barangay certificate issued not for that person?

This is highly anomalous.

FURTHER, the certificate to file action must be signed by the Lupon officer concerned – NOT THE BARANGAY CHAIRMAN.

The law is very clear that it is the Lupon Chairman who should issue the certificate to file action and not the barangay chairman.

So that if the certificate is signed by the barangay chairman, it was an exercise of an authority as the barangay chairman and NOT the exercise of the authority as the barangay lupon chairman.

It is therefore clear that THERE IS NO PRESUMPTION THAT CAN BE GIVEN TO THE CERTIFICATE TO FILE ACTION ISSUED FOR OTHER PURPOSE.

The certificate to file action was issued for the purpose of Randel’s and Rowena’s filing of action in court.  It was NOT issued for the purpose of the private complainant’s filing of her case WHEN SHE HERSELF DISRESPECTED THE BARANGAY PROCEEDINGS BY GOING DIRECTLY TO THE PROSECUTION’S OFFICE.

SERIOUS IRREGULARITIES are sufficient to diminish the presumption of regularity. This is what the jurisprudence has settled.

In this case, the IRREGULARITIES ARE NO LESS THAN SERIOUS.


Error No. 2


            It is the basic principle of the Constitutional Due Process that before an act can prejudice any person, the burden of proof of compliance with the process or procedure should be offered first before that act can operate to divest that person of the right to life, liberty or property.

            When the Constitution speaks: “No person shall be deprived of life, liberty or property without due process of law...,” the Constitution requires NO LESS THAN DUE PROCESS.  It means that half process is not allowed.  It means that three-fourths process is not allowed.   It must be the WHOLE or the ENTIRE process to be followed before it can be said as “DUE PROCESS.”

If the Constitution does not require full compliance with due process, IT COULD HAVE NOT AFFIXED THE QUALIFICATION “DUE” BEFORE THE WORD “PROCESS.”

This is succinct in the case of extrajudicial confession.   Before an extrajudicial confession can attach against the confessor, there must be written a proof of compliance with the procedures laid down by the law or the Constitution: (a) There must be a written proof of compliance with the waiver of the right to remain silent; (b) There must be a written proof of compliance with the requirement of the presence of an independent counsel when the waiver was executed; and (c) There must be a written proof of compliance with the requirement that the counsel assisted in the narration of allegations in the extrajudicial confession.

In the instant case, despite the challenge by the accused, the prosecution sat idly by.

The prosecution did not submit any proof of compliance with procedures laid down by the Lupon law before a certificate to file action can be issued.

The compliance, to repeat, requires that it should be the LUPON CHAIRMAN who shall sign the certificate and NOT the BARANGAY CHAIRMAN.

ACTING in the capacity as Lupon Chairman is one thing and acting in the capacity as Barangay Chairman is another thing.

Ergo, by this alone, the accused must be acquitted on reasonable doubt that the certificate to file action was issued with sufficient regularity to merit a presumption of regularity.


Error No. 3


What more made the instant Decision clearly unconvincing is the fact that there is no dispute that the “certificate to the action” issued was ISSUED FOR THE ACCUSED – and NOT for the private complainant.

The said certificate to file action was issued due to the complaints of the accused against the private complainant and her cohorts.

The same certificate to file action was submitted by the accused to the Office of the City Prosecutor to support their separate complaint against the private complainant and her cohorts.

In short, the said certificate to file action was for the case filed by the accused and WAS NOT FOR THE CASES OF THE PRIVATE COMPLAINANT.

The prosecution cannot be permitted to be lazy to get its own certificate.

Since there is a law that authorizes the use of a certificate to file action for another case, IT BECOMES NOW NULL AND VOID TO USE THE SAME CERTIFICATE FOR THE CASES IT WAS NOT ISSUED FOR.

Ergo, by this alone, the accused must be acquitted.


Error No. 4


The law on slight physical injuries is very clear. It requires the ELEMENT OF INCAPACITY TO LABOR.

In this case, the prosecution failed to submit any proof that the private complainant was incapacitated to labor or that she needed medication for less than nine (9) days.

The doctor was not even presented.  Ergo, this constitutes a reasonable doubt as to the existence of injuries. 

It was not even known whether the laceration in the forehead was caused by a plastic chair.

Remember that a plastic chair is in the nature that it can cause an elongated laceration, unlike in a blunt cylindrical object whose bottom can cause a round-shape laceration.

The failure to present the physician therefore constitutes reasonable doubt.

Ergo, it is compelling for the Honorable Court to acquit the two accused on the ground of lack of evidence of incapacity to labor for nine (9) days or lesser.


Error No. 5


With due respect, the Honorable Court overlooked the fact that THERE IS NO EVIDENCE who was the person who actually smashed a monobloc chair on the private complainant.

In fact, the narration above by the MeTC of Manila, Branch 3, showed that Bernardita, the mother of Eileen, said that Eileen evaded the smashing of the chair.

In the narration cited by the MeTC on Mariedel’s testimony, Mariedel said that before the altercation with Rowena occurred, Mariedel already noticed the lump on the forehead of Eileen.  On the chair, Mariedel testified that it was thrown at Eileen by Randel but that the chair did not hit her.

Paul Anthony Villegas did not testify on the chair.  So that it is now very clear to say that the only evidence about the chair-smashing is the testimony of the private complainant herself, Eileen. 

The mother of Eileen said otherwise.  Mariedel said otherwise. 

The witnesses of the defense, who appear clearly coherent and straightforward and logical based on human experience, did not say there was chair-smashing incident that occurred.  In fact, the last witness of the defense even flatly said there was no chair in the vicinity.

As such, it is very clear that the RTC and the MeTC clearly erred in concluding that the chair-smashing incident claim occurred and it was indeed Randel who smashed the chair.

Let alone the testimonies of the witnesses of the prosecution that, as shown above, cannot even jibe with each other.

 THERE WAS ALSO NO EVIDENCE OF CONSPIRACY that was presented to bind Rowena and Randel in a manner that the act of one is the act of all.

Ergo, it becomes compelling for the Honorable Court to acquit both accused on “slight physical injury” crime accusation on the ground of insufficiency of evidence.


Error No. 6


If there is no intention to commit the crime, there is no malice. For crimes that are mala in se, as light threats or grave threats, good faith is enough to acquit.

In the instant case, the court a quo ruled that there was no intention on the part of accused Randel M. Torres to commit the crime of grave threats.

To prove, let the particular acknowledgement by this Honorable Court of the lower court’s pronouncement that state:

On the other hand, the lower court ruled in its Decision dated March 1, 2011 (Records p. 291) that in this case, accused
Randel M. Torres, before fleeing from the incident, and perhaps in an uncontrollable anger, uttered the threatening remarks upon complainant Eilleen D. Cruz, but in fact, (the) said accused had no real intention of carrying out the idea in this threat.


If there was no intention, THEN THERE WAS NO MALICE. If there was no malice, THEN THERE WAS NO CRIME.

It should be so simple as this.

Suffice it to state that when it was uttered IN THE HEAT OF ANGER there was no intention to state the same but that it spurted out of the mouth unconsciously or by accident of the tongue as an ordinary habit of life – and not meant to be so.

One who is in the heat or anger has no control over his sanity. No person can control his words when he is in the state of fired-up emotion.

The most words that could be uttered are those that come quickly without having been deliberated upon by his mind. Suffice it to state that only those that the tongue is used to utter in anger are those that are likely stated.

Of course, it must be different if it was stated without any anger. In this case, it was deliberate.

Clearly, it was an ACCIDENT of the tongue – not meant as it should be.

As such, it is common to hear angry people expressing his angst by saying: “YOU SON OF A BITCH!”, or “FUCK YOU!”, “PUTANG INA MO!”, “MAMAMATAY KA SANA!”, “TATAMAAN KA SA AKIN!”, “PUTANG INA MO, PAPATAYIN KITA!”, ETC.

This innocence is really galvanized by the proof furnished by the information itself that states: “but accused, however, by subsequent acts, did not persist in the idea conceived in his threats.”  

The lawmakers recognized these realities that the person similarly situated should not be punished for grave threats if these are mitigating, or exempting or negating circumstances that occurred during the utterance of the supposed threats.

These realities must have led the lawmakers NOT to define as a crime the act of uttering threats under the heat of anger and that the threatened act would amount to a crime when pursued.

Simply stating, “Nullum crime nulla poena sine lege.”

Since there is no crime defined for acts of uttering threats under a compulsion of anger, THERE IS NO PUNISHMENT THAT CAN BE WARRANTED.

What is punished is uttering threats under a compulsion of anger if the threats do not amount to a crime.

Simple. In this case, the information alleged that the alleged threats were uttered in the heat of anger but the threats if true clearly amounted to a crime of murder.


Error No. 8


Moreover, the Honorable Court erred in finding accused Randel M. Torres guilty of a higher crime of grave threats when he is not charged with the same.

It becomes a violation of due process clause of the accused if he is convicted of the crime NOT STATED in the information.

The statements in the information are read in front of the accused in compliance with the due process that the accused must be informed of the nature and cause of accusation against him.

Therefore, those that are not read cannot be imputed against the accused.

In the instant case of “other light threats,” the information stated the alleged threats as done in the heat of anger and which were not done in subsequent acts that the accused did not persist in pursuing the idea conceived in the uttered words.

In the case of grave threats, it punishes threats without existence of heat of anger and without the existence of the fact that the alleged threats were pursued.

So that the Regional Trial Court, assuming without admitting that the accused is indeed guilty of uttering such words, violated the due process clause.

Additionally, it is also undisputed that it becomes a violation against the double jeopardy proscription when it convicted the accused of the crime higher than what is charged and what is read to him during the arraignment.


Error No. 9


Now, assuming indeed that the said act of uttering those words is punishable, and by looking at the evidence alone, there are no circumstances that would show obliteration or depreciation of the offense of the accused to be meted with harsh penalties.

The law allows the court to impose a fine or an imprisonment or both. So that if there is really no justification, as in the case at bar that everything occurred allegedly due to the heat of anger and there is no evidence that it is habitual on the part of the accused, then there is sound justness to impose only fines.

In issuing Circular 08-2008 advising judges to impose only fines in case of conviction of libel, the Supreme Court justified as follows:

“The judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition if a fine alone would best serve the interests of the justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.”


For sure, assuming that the accused are indeed guilty, it is submitted that the imposition of fines alone would best serve the interest of justice.

For sure, there is no evidence to state that removal of imprisonment would depreciate the seriousness of the offense, or work violence on the social order, or otherwise be contrary to the imperatives of justice.

NOW, the utterance of the accused can be considered as a REASONABLE MEANS USED AS SELF DEFENSE.

It is undisputed that the court a quo found that the accused was running away when he was uttering these words.

And when he was running away, it means that there was a presence of a threat to this life.

And when there was a threat to his life, then that utterances can be given the favor of the doubt that it was uttered as a means of self-defense TO STOP THE PURSUERS.

Let it be asked: WHY DID RANDEL TORRES RUN IF HE WAS IN THE UPPERHAND IN THAT BRAWL?


Error No. 10


With due respect, the accused are asking the Honorable Court to re-examine the evidence presented and make a ruling whether the court a quo made a correct conclusion as to what should be the ultimate facts.

As narrated above with annotations written in italics, it is clearly shown that between the two sets of witnesses, it is the witnesses of the defense that are consistent with each other, coherent, logical to human experience, and the one that can explain why Randel ran away.

To the contrary, the testimonies of the prosecution witnesses did not jibe with each other on material points.  Eileen said Randel smashed a plastic chair on her when she turned her head toward her back.  Mariedel said that Randel threw the chair on Eileen but did not hit Eileen.  Bernardita said that Randel tried to hit Eileen with the chair but that Eileen evaded the attempt.  

They also differ from one another as to how the altercation started and progressed.

As such, it is very clear that the testimonies of the prosecution witnesses are not jibing with each other.

The stories presented by the prosecution are impossible to happen and not consistent with the normal habits of life. The prosecution did not present any explanation how the stories happened to be consistent with human experience.

Moreover, the stories were presented in general statements or lacking in material specifications to be believable.

Anybody claiming to be a witness to a crime is telling the truth only if he or she can tell the details of the incident in a blow-by-blow manner. A reading of the affidavits of the complainant and her witnesses and a review of their testimonies show the lack of material specific details.

It is required that the testimonies must present the details on how the incident occurred to justify proof beyond reasonable doubt.

These points are shown by the narration of facts by the witnesses with annotations as presented above under the heading “The Facts.”

The theory of the prosecution is that for no reason at all she was pushed that nearly caused her baby she was carrying to fall out.  She did not specify how she was pushed and how strong was the push.   

Right there and then she claimed she turned her head toward the direction of her back.  Note that there were no specific details presented on how the push and the fall happened.  At that moment, she claimed that accused Randel Torres smashed on her forehead to cause her reading glasses to fall and crash on concrete ground. There were no damage on her reading glasses that were presented.  The claim of Eileen is also impossible to happen because she claimed she was carrying a four-month-old baby.  In fact, how she could defend her baby if indeed there was smashing? 

At that juncture, she claimed she handed her baby to her sister-in-law to avoid harm on the child.  There were no explanations given how it happened that she still had the time to protect her baby.  There was also no explanation given to convince how it happened that Randel would smash a chair on her when she was carrying a baby and when doing so would mean Randel would also be hitting Rowena, his wife.   

Subsequently, the private complainant said she faced the spouses with only herself against two persons, without explaining how this would happen when she said she feared the accused.   

But as she faced the accused, she said that accused Rowena pulled her hair.   No specific details were given how this happened.  Again, she did not explain how she managed to see the act of pulling when she said she had no more eyeglasses at this time.   She then added that at this juncture she and Rowena engaged each other in “pambuno” on the road.   

Thereafter, Rowena said she was embraced by Randy, brother of accused Rowena.  But she did not provide details neither she explained why she did not file any criminal complaint against Randy nor explain why her alleged witness Madel (Mariedel) who she claimed to be her sister-in-law did come to her aid.

To the contrary, Eilleen Cruz claimed that Madel did an act unexpected of a sister-in-law that the latter should have helped her in the fight if indeed there was a fight instead.

Until this point from the time of alleged smashing with a plastic chair, Eilleen did not explain what accused Randel was doing, whether he was just watching, or cheering, or holding at bay with onlookers.    

Eilleen also did not explain in her affidavit why Madel only contended herself to tell Randy to let the two women fight. Thereafter, while logically engaged in “pambuno” Eilleen claimed she still heard Randy hurl invectives and say he called for backup and that their days were numbered.   Eilleen did not say any invectives from Randy.

Subsequently, Eilleen claimed she saw accused Randel in the act of whipping her on the head with a chair, without specifying whether it was a steel or plastic chair.

Then Eilleen also made a claim that she managed to waive away from the claimed chair smash, that in the process instead hit Paul.

At this juncture, accuser Eilleen claimed that Randel ran away and shouted, “Putang ina ninyo! Babalikan ko kayo! Papatayin ko kayong lahat!” If this is true, why is it that Paul did not file a complaint? They did not explain. Eilleen also did not give explanation where was accused Rowena at this point.

Actually, all the witnesses she presented were not mentioned by her to be present when the alleged incident happened.

Eileen also did not explain how this Paul related to Paul Anthony.   She also did not say in her narration of the alleged incident that her mother Bernardita Cruz was watching her fight with accused Rowena nor explain why the mother did not join the fight when natural law dictates she cannot stomach watching a daughter being mauled.

The belated claims cannot be believed in unless explained satisfactorily.

Eileen did not present the doctor who allegedly examined her to explain if the injuries were indeed consistent with a plastic chair. Thus, this constituted a reasonable doubt whether it was the accused who caused her alleged injuries.

She also did not present medical proof of injuries due to acts of pulling, and “pambuno”, or wrestling, or punching, or scratching that is common to women in fight.

The testimonies of her alleged witnesses hardly corroborate or explained the contention of Eilleen.

By these unexplained consistencies with logical normal habit of life, there is already a big doubt on her claims of threats and physical injuries.

Now, because Randel ran away and the running away was explained by the coherent witnesses to have been because the father of Eileen fired his gun on Randel, it is now consistent with logic that Randel did not shout the threat. 

At the moment while a person is being fired at, he will never think of saying anything because all what he would think is to seek cover to save his life.  Life is more precious than shouting a threat.

The narration of facts above is very clear in presenting who between the two groups of witnesses should be believed in.

Ergo, factually speaking, the accused must be acquitted.

The Prayer


            ALL TOLD, this Memorandum is submitted.   Other reliefs just and equitable are also prayed for. Manila, February 4, 2012.

RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521

By:

CIRILO P. SABARRE JR.
IBP No. 856677 /01-03-2012
PTR No. 117312429 /01-03-2012
Roll No. 53639 / MCLE Compliance No. IV-0003755



DERVIN V. CASTRO
IBP No. 836900/11-18-2010 up to 2012
PTR No. 0335125 /01-03-2012
Roll No. 53624 /MCLE Compliance No. IV-0007336



BERTENI CATALUÑA CAUSING
IBP No. 894664 / 03-20-2012 / Manila
PTR No. 0675267 / 03-27-2012 / Manila
Roll No. 60944/ MCLE Compliance No. IV-0007338

Cc:
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legaspi Village, Makati City

EILLEEN D. CRUZ
Cluster 5, Unit 3-J, U.N. Gardens Condominium
4th Cristobal St., Paco, Manila
Explanation

Far distance and lack of manpower compelled the service of this Motion by registered mail.


CIRILO P. SABARRE JR./DERVIN V. CASTRO /BERTENI C. CAUSING
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