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LEGAL MEMORANDUM

TO: Atty. Jesus Malcolm G. Madriaga


FROM: Jessica Joyce P. Pealosa
RE: Multiple criminal charges against Supt. Marvin Marcos and
members of the police Criminal Investigation and Detection
Group (CIDG) in Region 8 for killing Albuera, Leyte Mayor
Rolando Espinosa, Sr.
DATE: January 5, 2017

FACTS

The NBI filed before the Department of Justice (DOJ) multiple


murder and perjury cases against 24 members of the Philippine National
Polices Criminal Investigation and Detection Group (PNP-CIDG) Regional
Office No. 8 in connection with the killing of Albuera, Leyte Mayor
Rolando Espinosa, Sr.

Facing complaint for multiple murder are Superintendents Marvin


Wynn Marcos and Santi Noel Gaspang Matira, Chief Insp. Leo Daio Laraga,
Senior Inspectors Deogracia Pedong Diaz and Fritz Bioco Blanco, Senior
Police Officers 4 Juanito Ampado Duarte, Melvin Mendoza Caboyit and
Eric Palattao Constantino, SPO2 Benjamin Layague Dacallos and Alphinor
Milla Serrano, Jr., PO3 Johnny Abuda Ibanez, Norman Tiu Abellanosa and
Lloyd Ortinez Ortiguesa, PO2 Niel Patrimonio Centino, PO1 Bernard
Rodriguez Orpilla and Jerlan Sadia Cabiyaan, Cristal Jane Briones Gisma
and Divine Grace Baclas Songalia, all assigned at CIDG Regional Office
No. 8 in Port Area, Tacloban City; as well as Chief Insp. Calixto Cabardo
Canillas Jr., Insp. Lucresito Adana Candelosas, SPO2 Antonio Romangca
Docil, SPO1 Mark Christian Castillo Cadilo, PO2 John Ruel Baldevia
Doculan and Jaime Pacuan Bacsal, all assigned at Regional Maritime Unit 8.
Furthermore, NBI also recommended the filing of perjury charges against
Laraga, Abellanosa and witness Paul Olendan for maliciously obtaining a
search warrant. 1

Mayor of Albuera, Leyte, Rolando Espinosa, Sr. is a Filipino


politician elected to the position in the May 2016 Philippine elections. 2 He
died on November 5, 2016, at the Baybay City Provincial Jail. The said

1 Tetch Torres-Tupas. NBI: Mayor Espinosa was murdered, defenseless. INQUIRER.NET, 06:50
PM December 06, 2016 http://newsinfo.inquirer.net/851292/nbi-mayor-espinosa-was-murdered-
defenseless#ixzz4UTzAxd60

2 Who is Rolando Espinosa, Sr.?. ABS-CBN News Network. 3 August 2016. Retrieved 6
December 2016.

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government official was detained on the ground of illegal drug possession in
October 2016.3

CIDG operatives applied for the warrant pursuant to the information


obtained from a walk-in informant on October 29, 2016, that Espinosa had a
firearm inside his jail and Yap was selling shabu in jail. On November 4,
2016, Police Chief Inspector Leo Laraga went to Basey, Samar, to apply for
a search warrant. On the same day, the judge interviewed the informant. Five
hours later, Judge Tarcelo Sabarre Jr. of the Regional Trial Court Branch 30
at the Baybay City Provincial Jail in Barangay Hipusngo granted the warrant
application. The CIDG 8 team arrived at their office in Tacloban City by
5:30 pm, and met with Marcos and other officials 30 minutes later. By 12:30
am on November 5, 2016, the team conducted a briefing for the service of
the warrants.4

There were 40 detainees in the jail. Espinosa was detained alone in


cell number 1 while Yap shared cell number 7 with all other inmates.
According to the witnesses who are inmates, seven men went to the inner
portion of the jail house wherein two of them went to cell number 7, three
stayed in the middle of the hall, and two headed to Espinosas cell who are
said to be CIDG operatives wearing police uniforms without nameplates. It
was also stated that those men brought a big cutter, and when they knew that
there is a CCTV, they left. They returned and went inside with the light of
the CCTV turned off. After, all prisoners were commanded to drop to the
floor on their stomachs, and were threatened that if they convey to anyone
anything what is about to happen, they will return and shoot them. The
witnesses recalled that Espinosa told the policemen not to plant anything on
him because he doesnt have those items; and that Espinosa even asked the
policemen if he could use the toilet but the latter refused. Then, gunshots
were heard a few minutes after simultaneously at cells number one and
seven. The next thing they knew, both Espinosa and Yap were bathing in
their own blood.5

ISSUES

I. Whether or not the respondents are liable for murder pursuant


to Article 248 of the Revised Penal Code.

3 Albuera Mayor Espinosa shot dead inside jail cell. ABS-CBN News. 5 November 2016.
Retrieved 14 November 2016.

4 Bea Cupin. Senate probe: Poorly-written script in Espinosa killing? November 12, 2016.
http://www.rappler.com/newsbreak/in-depth/152162-senate-probe-espinosa-killing-pnp

5 Gerg Cahiles. Witness: No shootout, Albuera Mayor Espinosa murdered. CNN Philippines.
November 8, 2016. http://cnnphilippines.com/news/2016/11/08/Witness-No-shootout-Albuera-
Mayor-Espinosa-murdered.html

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a. Whether or not the criminal offense of murder was
committed with generic aggravating circumstance of
evident premeditation.

II. Whether or not the respondents have maliciously obtained a


search warrant which is against Article 129 of the Revised
Penal Code.

a. Whether or not the respondents are liable for perjury


pursuant to Article 183 of the Revised Penal Code.

DISCUSSION

I.Respondents - Supt. Marvin Marcos and members of the police Criminal


Investigation and Detection Group (CIDG) in Region 8 are liable for
murder pursuant to Article 248 of the Revised Penal Code; the criminal
offense of murder was committed with generic aggravating circumstance of
evident premeditation.

Murder is the unlawful killing of any person which is not parricide or


infanticide. Article 248 of the Revised Penal Code expressly provides that
the following: Murder. Any person who, not falling within the provisions
of Article 246 shall kill another, shall be guilty of murder and shall be
punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid


of armed men, or employing means to weaken the defense or of
means or persons to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck,


stranding of a vessel, derailment or assault upon a street car or
locomotive, fall of an airship, by means of motor vehicles, or with the
use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding


paragraph, or of an earthquake, eruption of a volcano, destructive
cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the


suffering of the victim, or outraging or scoffing at his person or
corpse.6

6 Revised Penal Code, Article 248

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The elements of murder includes: that the person was killed, that the accused
killed him, that the killing was attended by any of the qualifying
circumstance mentioned in Article 248, and that killing is not parricide or
infanticide. 7

Premeditation is a way of committing the crime which implies a deliberate


planning of the act before executing it. The criminal act must be preceded by
cool thought and reflection upon the decision to carry out the criminal intent
during the time interval sufficient to arrive at a calm judgment. The
prosecution must prove: the time when the offender determined to commit
the crime, an act manifestly indicating that the culprit has clung to his
determination, and a sufficient lapse of time between the determination and
execution (to allow him to reflect on its consequences).8

The facts of this case are explicitly evident that such requisites for murder
are present. Mayor Espinosa was undoubtedly killed, was killed by the
accused, it is certainly with the aid of armed men (qualifying circumstance
mentioned in Article 248), and such killing is not parricide or infanticide.
However, there are few confusions as to the manner of killing the victim
which gives rise to the generic aggravating circumstance of evident
premeditation.

Senators have described Mayor Espinosas killing as premeditated


based on the suspicious manner by which the CIDG team carried out the
raid. Upon investigation, the search warrant was a cover to legitimize the
operation. Contrary to the polices claim during the Senate inquiry that they
entered Baybay jail at 4:10 a.m., CCTV footage from the Department of
Public Works and Highways office nearby showed that they went inside the
premises at 3:05 a.m. on Nov. 5, 2016. During the Senate inquiry, the Supt.
Santi Noel Matira said they called scene of the crime operatives (Soco) at
3:49 a.m. According to the NBI, the police are already finished with the
operation by that time. Moreover, after Espinosa was killed, a police
operative wearing gloves and carrying a gun entered the mayors cell, and
when the man went out, he was no longer carrying the gun. Also, on the
course of the shots, if there was a shoot-out, there would have been shots
fired toward the door, but there were none. Surprisingly, NBI was not able to
recover the footage because the hard drive of the CCTV was missing. NBI
spokesperson Ferdinand Lavin said that they respect the findings of the
police but these are the findings of the NBI and they stand by their findings.
They believe there is criminal intent. There was community of purpose,
there was mission in their action there was conspiracy.9 There is also

7 Luis Reyes, RPC Book2 Annotation, p. 496.

8 Revised Penal Code, Article 14, Par. 13- Aggravating Circumstance

9 Tetch Torres-Tupas. NBI: Mayor Espinosa was murdered, defenseless. INQUIRER.NET, 06:50
PM December 06, 2016 http://newsinfo.inquirer.net/851292/nbi-mayor-espinosa-was-murdered-
defenseless#ixzz4UTzAxd60

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discrepancy in the photos provided. The Philippine Center for Investigative
Journalism show the body of Mayor Espinosa lying flat on his back with his
eyes half-open, and both of his hands empty; while the photo officially
released by the Criminal Investigation and Detection Group 8 of the
Philippine National Police shows Espinosa's body slumped sideways, with
his right hand appeared to be holding a gun.10

The preceding paragraph is consistent with the requisite of premeditation


the time when the offender determined to commit the crime, an act
manifestly indicating that the culprit has clung to his determination, and a
sufficient lapse of time between the determination and execution. The time
when the offender determined to commit the crime is shown when search
warrant has been procured before the raid was executed, the policeman
called Soco even before Espinosa loses vital signs, and those inconsistent
time reports of arrival of policemen to jail as compared to video footage
presented by DPWH. An act manifestly indicating that the culprit has clung
to his determination is evident when the CIDG operatives turned off the
CCTV footage by using a big cutter, planting gun on the hands of Mayor
Espinosa after the shootout, and inconsistent photograph showing the victim
has firearm while the other has none. A sufficient lapse of time between the
determination and execution was presented when the policemen has
prepared search warrant, time when CCT malfunctioned, and other
discrepancies to the defense of CIDG which denotes a deliberate planning of
the act.

In the view of the foregoing facts presented, evidence points out to


murder with generic aggravating circumstance of evident premeditation.
Clearly, the respondent has violated Article 248 of the Revised Penal Code.

II. Respondents Supt. Marvin Marcos and members of the police


Criminal Investigation and Detection Group (CIDG) in Region 8 have
maliciously obtained a search warrant which is against Article 129 of the
Revised Penal Code; and are liable for perjury pursuant to Article 183 of the
Revised Penal Code.

A search warrant is an order in writing issued in the name of the


People of the Philippines, signed by a judge and directed to a peace officer,
commanding him to search for personal property described therein and bring
it before the court.11

Pursuant to Art. 129 of the Revised Penal Code, Search warrants maliciously
obtained and abuse in the service of those legally obtained. In addition to
the liability attaching to the offender for the commission of any other

10 Nancy Carvajal. CIDG handout. ABS-CBN. December 6, 2016.


http://www.philstar.com/headlines/2016/12/06/1650872/nbi-espinosa-slay-was-rubout-not-shootout

11 Sec. 1, Rule 126, Revised Rules of Criminal Procedure

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offense, the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period and a fine not exceeding P1,000 pesos
shall be imposed upon any public officer or employee who shall procure a
search warrant without just cause, or, having legally procured the same, shall
exceed his authority or use unnecessary severity in executing the same.12

The elements of procuring a search warrant without just cause includes the
following: that the offender is a public officer or employee, that he procures
a search warrant, and that there is no just cause.13

The above mentioned requisites are present in the instant case. The
offenders are CIDG (public officer or employee), they legally procured a
search warrant issues by Judge Tarcelo Sabarre Jr., and there is no just cause.
The absence of just cause is apparent when the NBI said that based on its
investigation, the Baybay City jail where Espinosa was detained had
undergone a thorough search on October 5, 2016 or less than a week
before the CIDG 8 team served a search warrant on Espinosa to rid the
facility of contraband. The same effort, however, yielded nothing but a few
items like cellular phones. It was, therefore, impossible for Espinosa and
Yap to possess these firearms and illegal drugs inside their respective cells
on the night of the supposed implementation of the search warrants. 14 The
true test of lack of just cause is whether the affidavit filed in support of the
application for search warrant has been drawn in such a manner that perjury
could be charged thereon and affiant be held liable for damages caused. The
oath required must refer to the truth of the facts within the personal
knowledge of the applicant for search warrant or his witnesses, not of the
facts "reported to me by a person whom I consider to be reliable."15

The public officers procuring a search warrant without just cause may
also be held liable for perjury if they made a willful and deliberate assertion
of falsehood in the affidavits filed in support of the application for search
warrant. By virtue of Art. 183 of the Revised Penal Code. False testimony in
other cases and perjury in solemn affirmation. The penalty of arresto
mayor in its maximum period to prision correccional in its minimum period
shall be imposed upon any person, who knowingly makes untruthful
statements and not being included in the provisions of the next preceding
articles, shall testify under oath, or make an affidavit, upon any material
matter before a competent person authorized to administer an oath in cases
in which the law so requires.

12 Revised Penal Code, Article 129

13 Luis Reyes, RPC Book 2 Annotation

14 NBI: Mayor Espinosa's death a 'rubout'. RAPPLER. December 07, 2016.


http://www.rappler.com/nation/154717-nbi-mayor-espinosa-death-rubout

15 Alvarez vs. Court, et al., 64 Phil. 33

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Any person who, in case of a solemn affirmation made in lieu of an
oath, shall commit any of the falsehoods mentioned in this and the three
preceding articles of this section, shall suffer the respective penalties
provided therein.16

The elements of perjury are the following: that the accused made a
statement under oath or executed an affidavit upon a material matter; that the
statement or affidavit was made before a competent officer, authorized to
receive and administer oath; that in that statement or affidavit, the accused
made a willful and deliberate assertion of a falsehood; and That the sworn
statement or affidavit containing the falsity is required by law.17

The preceding paragraph is supported by the fact that Investigation


conducted by the NBI showed that Olendan, whose testimony was used as
basis for the search warrant, had lied in court. Laraga, Abellanosa, and
Olendan for the maliciously obtained search warrant against Espinosa, since
the informant who executed the affidavit was perjured. The NBI said that
based on its investigation, Olendans claim that he went to the Leyte Sub-
Provincial Jail to visit inmate Raul Yap on October 28, 2016, was not true, as
witnesses stated that Olendan was at the Leyte National High School, where
he works as a utility personnel that day.18 Given the fact that Olendan
deliberately gave false testimony as basis to obtain search warrant, perjury
is, thus, present.

CONCLUSION

CIDG 8 operatives Superintendent Marvin Marcos, Superintendent Santi


Noel Matira, Chief Inspector Leo Laraga, Senior Inspector Deogracias Diaz
III, Senior Inspector Fritz Blanco, Senior Police Officer 4 Juanito Duarte,
Senior Police Officer 4 Melvin Cayobit, Sernio Police Officer 4 Eric
Constantito, Senior Police Officer 2 Benjamin Dacallos, Senior Police
Officer 2 Alphinor Serrano Jr, Police Officer 3 Johnny Ibanez, Police Officer
3 Norman Abellanosa, Police Officer 2 Niel Centino, Police Officer 1
Bernard Orpilla, Police Officer 1 Lloyd Ortiguesa, Police Officer 1 Jerlan
Cabiyaan, Cristal Jane Gisma and Divine Grace Songalia are liable for
multiple murder. Evidence supported the killing of Espinosa and Yap was a
murder with generic aggravating circumstance of evident premeditation.
Regional Maritime Unit members Chief / Inspector Calixto Canillas,
Inspector Lucrecito Candilosas, Senior Police Officer 2 Antonio Docil,
Senior Police Officer 1 Mark Christian Cadilo, Police Officer 2 John Ruel

16 Revised Penal Code, Article 183

17 People vs. Bautista, C.A., 40 O.G. 2491

18 NBI: Mayor Espinosa's death a 'rubout'. RAPPLER. December 07, 2016.


http://www.rappler.com/nation/154717-nbi-mayor-espinosa-death-rubout

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Doculan, Police Officer 2 Jaime Bacsal are likewise liable for the same
charges.

Chief Inspector Leo Laraga, PO3 Norman Tiu Abellanosa and Paul
Granados Olendan are further more liable for search warrants maliciously
obtained under Art. 129 of the Revised Penal Code and perjury under Art.
183 of the same code.