Republic of the Philippines

SUPREME COURT
EN BANC
Manila

PEOPLE OF THE PHILIPPINES

Plaintiff - Appellee

- versus - CRIMINAL CASE NO. M-15-24950

For: Murder

SPO1 JOBERT B. REALIZAN

Accused - Appellant

x----------------------------------------x

MEMORANDUM

DEFENDANT, SPO1 JOBERT B. REALIZAN, by counsel and to this

Honorable Court, most respectfully submit this Memorandum and in support thereof
aver:

PREFATORY STATEMENT

Well-settled is the rule in criminal law that the conviction of an accused

must be based on the strength of the prosecution evidence and not on the
weakness or absence of evidence of the defense.1

In the trial of every criminal case, a judge must rigidly test the State’s evidence
of guilt in order to ensure that such evidence adheres to the basic rules of admissibility
before pronouncing an accused guilty of the crime charged upon such evidence.
Nothing less is demanded of the judge; otherwise, the guarantee of due process of law
is nullified. The accused need not adduce anything to rebut evidence that is
discredited for failing the test. Acquittal should then follow.2

When the guilt of the accused has not been proven with moral certainty
presumption of innocence of the Accused-Appellant must be favored and his
exoneration be granted as a matter of right.3

It is also the right of every person to defend himself and his person from
imminent threat. For absent any law that would protect a person for doing acts of
such defense, our society will be in the mercy of those with ill will against those with
just intent towards others.

1 People vs Miranda, 772 SCRA 593, Underscoring provided

2 Anna Lerima Patula vs. People of the Philippines, G.R. 164457, 11 April 2012. Emphasis supplied
3 People vs. Cantilla, Jr., 394 SCRA 393
Memorandum
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 STATEMENT OF THE CASE

Herein Accused — SPO1 Jobert B. Realizan was indicted for murder filed by
the Office of the Prosecution of Manila. An information was filed thus:

That on or about September 21, 2011, in the City of Manila, Philippines, the above-
mentioned accused, did then and there wilfully, unlawfully, and feloniously, with
intent to kill, with treachery and evident premeditation, attack, assault, and use
personal violence upon the person of CHICO AMBON, a serious wound which was
necessarily fatal and mortal and which was the direct and immediate cause of his
death thereafter.

Contrary to law.

On February 6, 2012, Accused, assisted by his counsel de parte, was arraigned

and thereafter pleaded NOT GUILTY to the crime charged. After such, pre-trial was
conducted and the trial on the merits of the case was made.

After the prosecution and the defense have rested their case, the trial court
ruled to convict the Accused, finding him GUILTY BEYOND REASONABLE
DOUBT, and imposing against him the penalty of reclusion perpetua.

STATEMENT OF FACTS

On September 21, 2011, at around 1:00 in the morning Jobert Realizan

(Realizan), herein Accused-Appellant, met with Mary Jane Baja (Baja) at New Disco
Park located along Padre Faura Street, Manila who was with a certain Mario and
Gama. The group later boarded the Accused-Appellant’s Mitsubishi Lancer (Lancer)
and traversed M.H. Del Pilar Street, when a motorcycle suddenly crossed their path,
as such the Accused-Appellant hit his vehicle’s break but to no avail bumped into the
rear end of the car of Chico Ambon (Victim).

The Accused-Appellant then overtook the Victim’s car and parked in its front.
The Accused-Appellant alighted the vehicle together with his companion, the Victim
together with three other men also came out of the other vehicle, who approached
their direction ready for an attack. The Accused-Appellant then approached these
men to explain what happened and asked for an apology, he introduced himself as a
policeman and assured the other group that he will not run away from his obligations.
But in response, one of the men hurled vindictive and insulting words against the
Accused-Appellant.

Despite the above violent reactions, the Accused-Appellant explained himself

and offered to settle the damages. At that point, Gama approached these men and
tried to pacify the situation but was assaulted by the men. This forced Baja to
approach them but was also attacked by one of the men, prompted her to retreat to
the Lancer. There, Baja saw the Victim pushing the Accused-Appellant while the
latter was merely stepping backward while raising his hands. Baja was then
approached by another man and hit her in the head making her fall which caused
Memorandum
Page 2 of 9
injuries to her elbow. Gama then called the attention of the Accused-Appellant by
shouting that Baja was hit. The Accused-Appellant tried to approach her but was
blocked by the Victim and pushed the Accused-Appellant causing him to fall to the
ground and hit his head on the pavement, and while in the ground, the Victim kicked
the Accused-Appellant in the stomach.

The Victim then approached the Accused-Appellant while drawing something

from his waist which caused the Accused-Appellant to fear for his life; the Accused-
Appellant then drew his gun and fired towards the Victim, which caused the Victim to
be thrown away. Gama then shouted at the Accused-Appellant that Baja be brought
to the hospital which the Accused-Appellant heeded.

They went to the Ospital ng Maynila to seek for medical assistance. Upon
reaching the hospital and ascertaining that the condition of Baja was not that serious,
the Accused-Appellant went back to the place of the incident to check on the
situation of the Victim. However, the Victim was no longer there and was already
brought to the Philippine General Hospital.

The Accused-Appellant mentioned that he was not able to have himself

medically checked immediately after the incident and that he was only able to have
himself checked on October 6, 2011, following his surrender to the police authorities
on September 22, 2011.

According to the prosecution however, events leading to the death of the

Victim, from the testimonies of witnesses, are as follows;

Jonathan Albano (Albano) met with the Victim and a certain Armei Pascualito
(Pascualito) and Lucia Pe (Pe) at Cowboy’s Grill located in Malate area. He stated that
around 2 o’clock in the morning of 21 September 2011, they decided to go to the Mall
of Asia. While traveling along M.H. Del Pilar Street, a vehicle (Lancer) bumped the
rear end portion of their car. He further narrated that after such accident, the Lancer
over took their car and parked in their front side. Then the Accused-Appellant
together with two men and one woman alighted from the car. After such, the Victim
went out to talk to the Accused-Appellant. He, in turn, went out of the car to check
the damages at the rear portion of their car.

Following such, Pascualito also went out of the car. He took the picture of the
plate number of Lancer which caught the attention of the woman companion of the
Accused-Appellant. The woman, later identified as Baja, slapped the hand of
Pascualito. After that, Baja shouted and tried to grab the camera, but failed to do so.

Albano further claims that while this is happening, the Accused-Appellant and
the Victim were only talking. While the two are talking to each other, the Victim lit a
cigarette while the Accused-Appellant went to the driver side of the Lancer and went
back to the Victim while holding a gun. After such, the Accused-Appellant shot the
Victim.

The People then presented a more elaborate testimony of Rennie Lising

(Lising), a barangay tanod, who responded to the incident. The witness claims that
Memorandum
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while they are boarded in their patrol car and while roving around the area of M.H.
Del Pilar, he saw two cars parked along the side of said street. He also saw around
seven persons located in between the cars. He claimed that these persons are only
talking to each other. They parked near the place, and witnessed a woman shouting
and were trying to grab something from another man.

Lising then stated that he observed the Accused-Appellant and the Victim
were only talking to each other at that moment. He further stated that after the
talking, the Accused-Appellant went to the driver’s side of the Lancer and got a gun.
All of a sudden, the Accused-Appellant shot the Victim. The Victim was immediately
thrown away. He further added that after the shooting, the Accused-Appellant went
to their patrol car. The said Accused-Appellant acted as if he was searching for
something in their car and then the Accused-Appellant slipped the gun through its
window. After that, the Accused-Appellant, together with two men and the woman,
boarded the Lancer.

Milagros Honrado de Alvarado (Alvarado), the person whom the Accused-

Appellant bought the Lancer from, testified that around 5 o’clock in the afternoon of
September 21, 2011, the Accused-Appellant called her telling about the incident and
asking for her help. She further added that the Accused-Appellant met her in her
residence at 10 o’clock in the morning the following day (22 September 2011) and
instructed her to tell the police that the car which she sold to the Accused-Appellant
was already chopped. In response, she said that she cannot help the Accused-
Appellant about what happened and advised him that he should answer for his any
wrongdoing.

ISSUES

I. WHETHER OR NOT THERE IS A FINDING BEYOND

REASONABLE DOUBT THAT THE ACCUSED IS
GUILTY OF THE CRIME OF MURDER
II. WHETHER OR NOT THERE HAS BEEN
MISAPPRECIATION IN THE APPLICATION OF THE
ATTENDING MITIGATING CIRCUMSTANCES
III. WHETHER OR NOT THE JUSTIFYING
CIRCUMSTANCE OF ACTING IN DEFENSE OF HIS
PERSON OR RIGHTS IS ATTENDANT IN THE
INSTANT CASE

ARGUMENTS AND DISCUSSIONS

I. QUALIFYING CIRCUMSTANCES OF
MURDER NOT PRESENT

Murder is not applicable in this case

According to Article 248 of the Revised Penal Code; Any person who, not
falling within the provisions of Article 246 shall kill another, shall be guilty of murder

Memorandum
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and shall be punished by reclusion temporal in its maximum period to death, if
committed with any of the following attendant circumstances XXX.

The elements of murder are; (a) that a person was killed; (b) that the accused
killed him or her; (c) that the killing was attended by any of the qualifying
circumstances mentioned in Article 248 of the RPC; and (d) that the killing is not
parricide or infanticide.4

While elements a, b, and d are present, prosecution failed to prove the

presence of element c in this case. The dispositive portion of the decision of the
Regional Trial Court Mentioned treachery and premeditation as the qualifying
circumstances present. However, prosecution failed to prove the presence of both
these circumstances conclusively.

Treachery, to be accepted as a qualifying circumstance, must be tested two-

fold ; (1) at the time of the attack, the Victim was not in a position to defend himself;
5

and (2) appellant consciously and deliberately adopted the particular means, methods
or forms of the attack employed by him. The essence of treachery is the sudden and
unexpected attack by an aggressor on an unsuspecting Victim, depriving the latter of
any real chance to defend himself and thereby ensuring its commission without risk to
himself.

The Accused-Appellant was actually being physically harassed when he

committed the act. This was actually corroborated by Cabangon, who is a
disinterested party in the case. As noted in the testimony of the witness:

Q: Now, after that when the passengers from the Lancer alighted,
what happened next?
A: The driver from the Lancer alighted and went to the driver of
the Vios car and appeared to be apologizing the driver

Q: What was the response of the driver of the Toyota Vios and the
other passengers?
A: They were mad because their car was hit, sir

Q: Why do you say that they appeared to be angry

A: Because they shoved the driver and pointed their finger at him.

Q: Who was that driver you were referring to that who was shoved
and were pointed fingers?
A: Sir Realizan XXX

Q: And after you saw that scenario what happened next?

A: And then the situation became hot and the driver was shoved
and he fell down; and there was also another quarrel in the other side
of the car involving their female companions.XXX

4 People of the Philippines vs Casas, GR 212565; 25 February 2015

5 People of the Philippines vs Reyes, GR 118649; 9 March 1998
Memorandum
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 And even if we were to follow the prosecution’s theory, the Victim would
have seen the Accused-Appellant walk towards him with a firearm. The Accused-
Appellant was not, in any moment, in an advantageous position as against the Victim.

Premeditation argument
The requirements to prove evident premeditation are the following: (1) the
time when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit has clung to his determination; and (3) sufficient lapse of
time between the determination and execution to allow him to reflect upon the
consequences of his act.6

The premeditation to kill must be plain and notorious; it must be sufficiently

proven by evidence of outward acts showing the intent to kill. In the absence of clear
and positive evidence, mere presumptions and inferences of evident premeditation,
no matter how logical and probable, are insufficient.7 It bears reiterating that a
qualifying circumstance such as evident premeditation must be proven as clearly as the
crime itself. Corollarily, every element thereof must be shown to exist beyond
reasonable doubt and cannot be the mere product of speculation.8

Testimonies of the prosecution likewise prove that the time of the altercation
when accused decided to shoot Chico Ambon was insufficient to prove premeditation
The first requirement therefore has not been met. Witness Cabangon stated in his
testimony that the order of the incident lacks the material time for the accused to kill
the victim.

Q: And then what happened when Realizan was pushed by that man?
A: After he was shoved, he moved backwards and he fell down, sir.
Q: After Realizan fell down, what did he do?
A: When Realizan fell down and he was about to stand, he was
kicked hitting his stomach.
xxx
Q: What happened after that?
A: When Realizan was holding his stomach pain, and they about to
attack him and there was a shot then I ran because it was already a
gunshot, I got frightened, sir.

6
People of the Philippines v. Base, G.R. No. 109773; March 30, 2000.
7
People of the Philippines v. Chua, G.R No. 121792; October 7, 1998.
8
People of the Philippines v. Timblor, G.R. No. 118939; January 27, 1998.
Memorandum
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 Meanwhile, the prosecution’s basis for premeditation was only based on
surmises and presumptions. They lacked sufficient evidence as to prove that there was
material time between the planning and the execution so as to premeditate.

Similarly, the second requirement is absent. If the time when accused decided
to shoot Chico Ambon cannot be determined with certainty due to failure of
prosecution to determine material time for premeditation, then indeed one cannot
infer that he clung to his determination to kill the victim. In fact, one cannot infer if at
all that the act after stepping out of the vehicle presumably to seek settlement for the
damage to the victim’s car is the overt act manifesting his determination to stab the
victim.

Settled is the rule that when it is not shown how and when the plan to kill was
hatched or what time had elapsed before it was carried out, evident premeditation
cannot be considered.9

The last requirement is likewise lacking for the prosecution to invoke

premeditation. Accused-appellant’s act of stepping out from the vehicle was too
short a time for him to meditate or reflect upon the consequences of his decision to
shoot victim Ambon. To warrant a finding of evident premeditation, it must appear
not only that the accused decided to commit the crime prior to the moment of its
execution but also that this decision was the result of meditation, calculation,
reflection, or persistent attempt.10

A perusal of the testimonies on record shows that the altercation between the
accused Realizan and the victim Ambon took place simultaneously, at the same hour
when Realizan stepped out of the vehicle in order to settle matters with the victim. It
was in that same moment that after inflicting upon the accused punches and kicks that
the victim was shot. It was unfortunate indeed that, due to the aggression of the
victim and his companions, their actions led to the ultimate death of the victim. The
lapse of time between the decision to kill and the execution is insufficient to allow
appellant to fully reflect upon the consequences of his act and to effectively and
efficiently prepare and plan his actions prior to the commission of the crime.

II. MITIGATING CIRCUMSTANCES OF

SURRENDER IS PRESENT
The mitigating circumstance available should at least modify the judgment

Voluntary surrender is a circumstance that reduces the penalty for the offense.
Its requisites as a mitigating circumstance are that: (1) the accused has not been
actually arrested; (2) the accused surrenders himself to a person in authority or the
latter’s agent; and (3) the surrender is voluntary.11

9
People of the Philippines v. Basao, G.R. No. 128286; July 20, 1999.
10
People of Philippines v. Eribal, G.R. No. 127662; March 25, 1999.
11
Article 13, paragraph 7, Revised Penal Code; People of the Philippines v. Ignacio, G.R. No. 134568;
February 10, 2000 People of the Philippines v. Antonio, G.R. No. 128900; July 14, 2000.
Memorandum
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 For voluntary surrender to mitigate criminal liability, the following elements
must concur: (1) the offender has not been actually arrested; (2) the offender
surrenders himself to a person in authority or to the latters agent; and (3) the
surrender is voluntary.12 To be sufficient, the surrender must be spontaneous and
made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the
authorities the trouble and the expense that will necessarily be incurred in searching
for and capturing them.13

The essence of voluntary surrender is spontaneity and the intent of the

accused to give himself up and submit himself to the authorities either because he
acknowledges his guilt or he wishes to save the authorities the trouble and expense
that may be incurred for his search and capture.14

In the present case, the accused is entitled to the mitigating circumstance of

voluntary surrender because all three requisites of a voluntary surrender had been
made. Accused Realizan, in this case surrendered even before a warrant of arrest was
served neither was there an actual arrest. It was established that the surrender of
accused was made a day after the attack, after shooting victim Ambon, the accused
surrendered himself to the authority wishing to save the authorities the trouble and
expenses necessary for searching and capturing him in the alternative case he decided
to flee and hide. His surrender was on his own volition. This fact had not been
disturbed by the prosecution and was not challenged by them during any of the
proceedings. In this instance, the prosecution also admitted that this circumstance of
voluntary surrender is present in said case.

III. SELF-DEFENSE IS PRESENT IN

THIS CASE
There is no criminal liability when a justifying circumstance is present

12
Ladiana v. People of the Philippines G.R. No. 144293; December 4, 2002
13
Ibid.
14
Belbis vs. People of the Philippines, G.R. No. 181052; November 14, 2012
Memorandum
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 PRAYER

Accused-Appellant humbly submits that if we are to abide by the precepts of

the above judicial holdings, the Accused-Appellant is entitled to be, as he must be,
ACQUITTED.

Counsel for the Accused-Appellant

ANGELO CRUZATE
Address Line
IBP No. 003432 (May 13, 2017)
PTR No. 6614889/January 4, 2018/Makati City
Roll of Attorneys No. 69793
MCLE Compliance Exempt Until 2019

Memorandum
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