Professional Documents
Culture Documents
Sample Memorandum CA
Sample Memorandum CA
Court of Appeals
Manila
-versus-
Memorandum
The Prologue
In the instant case, one thing is undisputed: Accused Randel Torres ran
away.
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.
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.
The Facts
In narrating the facts based on the claims of respective witnesses,
comments or remarks are placed in italics and enclosed by brackets.
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.]
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 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.]
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.]
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.
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!!!.
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.]
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.]
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
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.
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.
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;
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
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.
It is highly anomalous.
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.
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.
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.
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.
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?
The law is very clear that it is the Lupon Chairman who should issue the
certificate to file action and not the barangay chairman.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
So that the Regional Trial Court, assuming without admitting that the
accused is indeed guilty of uttering such words, violated the due process clause.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
The Prayer
By:
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
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.