Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 123
Pasig City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- Criminal Case No. 12345-H

For: Violation of R.A. 6539
(Anti-Carnapping Act)
ROMULO C. TAKAD,
Accused.
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DEFENDANTS MEMORANDUM

Defendant, by counsel, respectfully submits its memorandum in the case:

THE CASE

1. An Information was filed charging the accused Romulo C. Takad for violation of R.A.
6539, otherwise known as the Anti-Carnapping Act of 1972. The information alleged that
the accused, with intent to gain and without knowledge and consent of the owner,
willfully and unlawfully, and feloniously take, steal, and drive away a Kawasaki
motorcycle with sidecar, colored black, bearing plate No. TU-9952, with a value of
P80,000.00, belonging to Bayan Development Corporation, to the damage and prejudice
of the latter. Accused denies the accusations;

THE FACTS

2. Sometime in May 2003, the Bayan Development Corporation (BDC), represented

through its Account Officer Zenny Aguirre, extended a group loan to six (6) members of
the Tricycle Drivers and Operators Association (SCCPPTODA 2) amounting to P480,
000.00. Each member received a share of P80, 000.00. The loan was evidenced by a
promissory note and Kasunduan between the borrowers and BDC;

3. One of the borrowers was Ma. Theresa Lacsamana, the live-in partner of the accused.
After the loan was granted, a tricycle bearing plate No. TU-9952 was released by BDC to
Lacsamana. The certificate of Registration and the Official Receipt issued by the Land
Transportation Office were under her name;

4. The loan under the agreed terms and conditions was to be paid within a period of thirty
(30) months. However, Lacsamana failed to comply with her obligation and upon her
default, BDC took possession of the tricycle on October 2, 2007 by virtue of the authority
granted to it by the Kasunduan dated April 2, 2006 (Doc. No. 315; Page No. 57; Book
No. 2; Series of 2006; Atty. Joseph B. Carreon, Notary Public). Lacsamana then
 requested for time extension for the payment of the balance of the loan including the
interest, but her request was subsequently denied by BDC;

5. The tricycle was then given to Ricardo Marasigan, the treasurer of the group for
management. There was, however, no court order authorizing either the transfer of
ownership or taking of possession of the said tricycle in case of default. After 15 days,
BDC allowed Lacsamana to redeem the tricycle by paying the arrears on or before
October 17, 2007, but she again failed to fulfill her obligation;

6. The following day, October 18, 2007, Lacsamana and the accused Takad went to the
office of BDC and offered to pay the outstanding balance of the loan for the redemption
of the tricycle. However, the offer was refused by BDC;

7. According to Aguirre, upon the refusal of the offer, Takad stated that, Huwag na huwag
kong makikita ang tricycle sa Pasig. Takad and Lacsamana in the hearing clarified that it
simply means Takad was hoping that he could avoid seeing the tricycle in Pasig because
it will hurt his feelings;

8. On November 20, 2007, the tricycle was given to the new assignee named Carlos Parlade
also a resident of Pasig City. On or about 1 oclock in the early morning of November 21,
2007, Parlade saw a person pushing away the tricycle which was outside his home. He
then shouted at the person which was just about a distance of only five (5) meters away
from him. A big streetlight lighted the place enabling Parlade to recognize the face of the
carnapper. The carnapper turned and faced Parlade, kick-started the tricycle and then
drove away;

9. In his escape, the carnapper passed Mario Mankas. According to Mario, he could not
clearly see the face of the carnapper because of his position. He was facing the road but
was bent over washing his hands. He also said that tricycle was moving in a very fast
speed that he could reasonably identify the build of the carnappers body;

10. At 7 oclock in the morning, same date, Parlade reported the theft incident to DBC,
through Aguirre. During their conversation, Aguirre automatically recalled what the
accused told her, when the latter went to their office with Lacsamana, that he should not
see the tricycle in Pasig. This statement gave her a doubt that it was the accused stole
the tricycle;

11. At 1 oclock in the afternoon of the same day, they reported the incident to the police.
And the Police Officers immediately acted on the report of Parlade and Aguirre; went to
the house of the accused and arrested him; and brought him to the police station;

12. At the police station, 5:30 in the afternoon of the same day, Parlade went back to the
police station because he was told by the police that they had captured the person who
allegedly stole his tricycle, and requested him to identify the carnapper. However, the
police did not shown the accused at the police line up with other persons of the same
built, so that Parlade could try to pick him out as the tricycle theft, instead, the police
investigator led Parlade into a room, pointed out Takad, and ask if he is the one who took
the tricycle. And at that time, Parlade was able to clearly identify the physical description
of the suspect;

13. Parlade also brought Mario to the police station to identify the person who stole his
tricycle and gave his testimonies that he saw the incident. The police investigator also did
not show the accused in a police line up, instead, someone pointed the accused Takad to
him. After having a good look at the accused, Mankas gave the physical description of
 the person who stole the tricycle while Takad is in the room. And because Mankas is
looking at Takad, he was able to say that the theft was medium built;

THE ISSUES

14. The principal issue in this case is whether or not the accused is guilty of violating R.A.
6739, otherwise known as the Anti-Carnapping Act of 1972. The resolution of this
depends on the following subordinate issues:

I. Whether or not the testimonies of the witnesses presented by the

prosecution are sufficient to prove the guilt of the accused beyond
reasonable doubt; and
II. Assuming arguendo that the testimonies of the witness are sufficient,
whether or not the first element of the crime of carnapping: that the
vehicle belongs to a person other than the accused is present;

ARGUMENTS

15. During the hearings, the prosecution presented the following witnesses:
(a) Zenny G. Aguirre, the account officer of Bayan Development Corporation;
(b) Carlos P. Parlade, the new assignee of the tricycle; and
(c) Mario Mankas;

THE TESTIMONIES OF THE

PROSECUTIONS WITNESSES ARE
NOT SUFFICIENT TO PROVE THE
GUILT OF THE ACCUSED

16. The allegations in the affidavits of the prosecutions witnesses are based on presumption
believed by Aguirre. When the Parlade reported the theft incident to Aguirre, the latter
immediately connect the incident to the statement made by the accused during their
conversation on October 18 when Lacsamana and the accused went to the office of BDC
to redeem the motorcycle, Aguirre recalled the accused saying that he should not see
the tricycle in Pasig, which she immediately relayed to Parlade. Based on this
presumption, the sworn affidavit executed by the witness Mr. Parlade is directed to the
accused, which immediately became the main suspect of the carnapping;

17. Moreso, several inaccuracies and factual errors were noted in the statements of the
witnesses during the cross examination. First, witness Mr. Parlade is a member of
Maybunga Security Force (Security Force), which is involved in looking for persons who
commit crimes in their barangay. As a member, he should have been aware that it is very
important to give a good description of the suspect. And the fact that the he saw the
carnappers face; he should have included the detailed description of the face in his sworn
statement. Even if the police did not ask the details of its face, based on his experience as
a member of Security Force, he is presumed to know its importance for the identification
of the suspect;

18. Considering his experience, witness should have included in its affidavit the detailed
description of the face of the suspect; that he has a light complexion and has a
pronounced jaw. And its failure to include in the affidavit will give doubt on reliability of
its statement pinpointing the accused as the carnapper;

19. In addition, the witness gave a description as to the length of the hair of the carnapper in
its affidavit, but the important details as to the shape of the face and the complexion of
 the skin were not include in the statement. It goes to show that the thief may or may not
have a fair complexion and a pronounced jaw. However, witness Aguirre associated the
warning made by the accused to the carnapping incident, Parlade was induced to believe
that it was really the accused who have committed the crime of carnapping, which belief
is merely circumstantial. Speculations and probabilities cannot substitute for proof
required to establish the guilt of the accused beyond reasonable doubt.1 In a criminal case,
every circumstance favoring the innocence of the accused must be duly taken into
account2;

20. Second, Mr. Parlade gave several inconsistencies. When the witness said during the trial
that he saw the accused pushing the tricycle, and he was five meters away from him, the
defense asked and said, in other words, he is somewhat near you, the witness replied,
yes, sir, medyo malapit siya. However, in the affidavit executed by the witness
indicating the distance of the accused from him at the time, the statement shows that the
witness said that, nang makita ko medyo malayo na ang tricycle na itinutulak ng
isang tao;

21. Other inconsistency was noted when the witness testified that he clearly saw the face of
the accused because the latter faced him when he shouted, but when the defense counsel
asked the duration of the glance by the accused to the witness, the latter said, opo, hindi
po, medyo matagal po. When asked to clarify his answer, he said, opo, medyo matagal
po. The fact that the purpose of the man was to flee, the glance should have been for a
very short time, inconsistent with what the witness testified;

22. Therefore, these inconsistent statements by witness Mr. Parlade make his testimony not
credible. It goes to show that he is not really sure of whom he saw, nor the identity of the
carnapper;

23. Third, the testimony of witness Mankas is not convincing enough to identify the accused
as the one who stole the tricycle. According to his sworn statement, the carnapper drove
the stolen tricycle very fast. In fact he testified during the cross examination that it was
at least twice the usual speed of the tricycle running on that road after midnight
(referring to the street where he saw the carnapper). He also testified that he had only a
brief glance of the driver. The fact that tricycle was running very fast and his head was
bowed down, though facing the road, when he saw the carnapper, the witness could not
satisfactorily gave adequate description of the carnapper, this was corroborated in his
testimony, hindi ko gaanong namukhaan dahil nakayuko ako. Instead, he only said
that he could only describe his built, and further testified that he could be able to identify
him partly by how his body moved. But when he was cross examined, he testified that he
only saw the carnapper sat still on the tricycle holding the steering bars as the tricycle
sped away from him, contrary to its statement that he could identify the carnapper partly
by how his body moved, where in fact, the carnapper did not stand on the seat, wave his
arm nor swing his body.

24. In other words, because the witness cannot sufficiently identify the carnapper with
reasonable certainty, his statement in its sworn statement regarding the physical built of
the accused is based not on the description of the carnapper during the incident but to the
physical built of the accused based on what he saw in the police station.

1 People vs. BAULITE G.R. No. 137599 [2001], citing People v. Jumao-as, 230 SCRA
70 [1994].

2 People vs. BAULITE, supra, citing People v. Sinatao, 319 Phil. 665, 687 [1995].
 25. Fourth, when the accused Takad was present to the persecutions witnesses Parlade and
Mankas, accused was not placed in a police line-up contrary to standard station house
verification procedures employed to test the memory of the witness.3

26. An underhand mode of identification somehow undermines the reliability of an accurate

identification of an accused, once so described by this Court as being "pointedly
suggestive, generated confidence where there was none, activated visual imagination,
and, all told, subverted their reliability as eyewitnesses. This unusual, coarse and highly
singular method of identification, which revolts against the accepted principles of
scientific crime detection, alienates the esteem of every just man, and commands neither
our respect nor acceptance."4

27. Verily, in one case decided by the Supreme Court, it held that while it is not shown that
Alejandra has been impelled by any ill-motive to testify against the accused, such
circumstance, however, does not guaranty that she could not have made an honest
mistake.5

28. Due to the aforementioned inaccuracies and factual errors noted, the testimonies of the
prosecutions witnesses were not convincing to warrant a judgment against the defendant.
The prosecution failed to prove the guilt of the accused beyond reasonable. Section 2,
Rule 133 of the Rules of Court, provides:

Sec. 2.Proof beyond reasonable doubt in a criminal case, the

accused is entitled to an acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable doubt does not mean
such a degree of proof, excluding possibility of error, produces
absolute certainly. Moral certainly only is required, or that degree
of proof which produces conviction in an unprejudiced
mind.(Emphasis supplied);
29.
To warrant conviction, "The rule is clear. The guilt of the accused must be proved beyond
reasonable doubt. The prosecution, on its part, must rely on the strength of its own
evidence and must not simply depend on the weakness of the defense. The slightest
possibility of an innocent man being convicted for an offense he has never committed, let
alone when no less than the capital punishment is imposed, would be far more dreadful
than letting a guilty person go unpunished for a crime he may have perpetrated." 6 "On the
whole then, the scanty evidence for the prosecution casts serious doubts as to the guilt of
the accused. It does not pass the test of moral certainty and is insufficient to rebut the
presumption of innocence which the Bill of Rights guarantees the accused. It is
appropriate to repeat the doctrine that an accusation is not, according to the fundamental
law, synonymous with guilt; the prosecution must overthrow the presumption of
innocence with proof of guilt beyond reasonable doubt"7;

3 People vs. Nio, G.R. No. 121629 May 19, 1998

4 People vs. Cruz, 32 SCRA 181, 186 [1970].

5 People vs. Robles, 92 SCRA 117 [1979].

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

7 People v. Dismuke, 234 SCRA 51, 61 [1994], citing People v. Dramayo, 149 Phil.
107 [1971]; People v. Garcia, 215 SCRA 349 [1992].
 30.
It is appropriate to repeat the doctrine that an accusation is not, according to the
fundamental law, synonymous with guilt; the prosecution must overthrow the
presumption of innocence with proof of guilt beyond reasonable doubt"8;

THE FIRST ELEMENT OF THE

CRIME OF CARNAPPING IS NOT
PRESENT; THE VEHICLE BELONGS
TO THE DEFENDANT HIMSELF.

31. Carnapping has been defined under R.A. No. 6539 as the taking, with intent to gain, of a
motor vehicle belonging to another without the latters consent, or by means of violence
against or intimidation of persons, or by using force upon thing. To constitute a crime of
carnapping, the following elements must concur: (1) the taking of a motor vehicle which
belongs to another; (2) the taking is without the consent of the owner or by means of
violence against or intimidation of persons or by using force upon things; and (3) the
taking is done with intent to gain9;

32. Assuming arguendo that the testimonies of the witnesses were sufficient, to warrant
conviction, all the elements of the crime of carnapping must concur. If the crime of
carnapping can be prosecuted against the person who has right over the vehicle, it could
lead to an absurd situation; owner is prosecuted for taking back his own property which
he has a better right over other person;

33. Here, the registered owner of the stolen Kawasaki motorcycle with sidecar, colored black,
bearing plate No. TU-9952 is Ms. Lacsamana. The certificate of Registration and the
Official Receipt issued by the Land Transportation Office were in her name;

34. The question now is, does the registration of the vehicle under the name of Lacsamana
absolve the accused since it is not under his name? The answer is yes. Established is the
fact that the accused Takad and Lacsamana are live-in partners. Hence property regime is
governed by the rules of co-ownership. Article 147 of the New Civil Code provides:

When a man and a woman who are capacitated to marry each

other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property
acquired by both of them through their work or industry shall be
governed by the rules on co-ownership.(Emphasis supplied);
35. Considering that Art. 147 of the Family Code explicitly provides that the property
acquired by both parties during their union, in the absence of proof to the contrary, are
presumed to have been obtained thru the joint efforts of the parties and will be owned by
them in equal shares, plaintiff and defendant will own their properties for that matter in
equal shares.10 Thus, the stolen tricycle is co-owned by the accused Takad and his live-in
partner Lacsamana. Each of them shall have the full ownership of his part and the fruits
and benefits pertaining thereto;

8 People v. Dismuke, 234 SCRA 51, 61 [1994], citing People v. Dramayo, 149 Phil.
107 [1971]; People v. Garcia, 215 SCRA 349 [1992].

9 People v. Napalit, supra at 700; People v. Calabroso, 340 SCRA 332, 342 (2000).

10 Paras, Civil Code Book 1 discussion on property regime of unions without

marriage
 36. The ownership of the stolen vehicle remains with the accused Takad and Lacsamana.
Evidence on the record and the provisions of law supports this position;

37. First, there is nothing in the Kasunduan which divest ownership of the tricycle to the
SAMAHAN or to BDC. Article 15.1 of the Kasunduan states that:

Kapag ang isang kasapi ay hindi makabigay ng tatlong

karampatang arawang hulong-bayad sa luob ng isang kinsenas o
napapaloob sa isang tseke sa BDC, ang kanyang tricycle ay
hahatakin ng SAMAHAN kasama ng linya (TODA) at/o
prangkisa at ito ay pangangasiwaan ng SAMAHAN upang ang
arawang kita nito ay tuwirang gagamitin ng SAMAHAN para sa
darating na arawang hulog-bayad ng kasaping ngkasala. (Emphasis
supplied)

(x x x the tricycle will be pulled out by the Samahan including the

franchise and will be under the cmanagement of the Samahan so
that the daily produce will be directed to the Samahan x x x);

38. Hence, the registered owner and the accused did not convey their ownership over the
tricycle to the SAMAHAN, the latters position of the said tricycle pertains only to the
management and administration for the satisfaction of the obligation of the delinquent
debtor;

39. Second, even if Lacsamana failed to pay its installment due to BDC, mortgagee, it does
not mean that the latter automatically becomes the owner of the property mortgaged. It
only means that the property mortgaged may be sold (to anybody, including the creditor)
so that from the proceeds of such alienation the debt might be paid. 11 Article 2088 of the
New Civil Code, provides:

Art. 2088. The creditor cannot appropriate the things given by way
of pledge or mortgage, or dispose of them. Any stipulation to the
contrary is null and void. (Emphasis supplied);

40. The right of possession over the tricycle by BDC is only for the latter to sell and recover
unpaid obligation. However, such right to sell or assign was overwhelmed by the
provision of the Kasunduan (Article 15.1) signed by BDC and the borrowers, including
Lacsamana.

41. Third, it is undisputed that Lacsamana and the accused went to BDC to redeem the
tricycle. Thought they were not able to meet the deadline set by Aguirre, they still have
the right to redeem it because the tricycle was not yet sold nor assign to others person.
The refusal of DBC to accept the payment were baseless, they should have allowed them
to pay the arrears.

CONCLUDING STATEMENT

42. Romulo Takad is entitled to an acquittal. Here, the accusations were based on
circumstances and testimonies of the witnesses; the prosecution was not able to prove his
guilt beyond reasonable doubt. Furthermore, being the co owner of the stolen tricycle,

11 Villarama v. Crisostomo, [C.A.] 54 O.G. 6894 and El Hogar Filipino v.

Paredes, 45 Phil. 178
 the accusation of the crime of carnapping does stand against the accused. Given so, the
accused is protected by the constitutional guaranty of presumption of innocence.

PRAYER

Wherefore, premised considered, it is most respectfully prayed that judgment be rendered

acquitting the accused for the crime of carnapping.

Pasig City, October 19, 2008

[Explanation: A copy of this memorandum has been served on the Plaintiff, through the
Pasig City Prosecutors Office, by registered mail in view of the distance and the absence of a
messenger who could make a personal service.

October 19, 2008.

CLABISELLAS LAW FIRM

No. 314, Alicia Residences Building
Maybunga, Pasig City
Tel. No. (032) 520-3245

By:

CARMELITO D. CLABISELLAS JR.

Roll No. 49976
IBP No. 1042743, November 9, 2007
Pasig City
PTR No. 10348659, December 28, 2007
Cebu Province
MCLE Compliance No. III-0019997
February 17, 2007
Email Add: [email protected]

Cc:

Atty. Isidro T. De Leon

Prosecutor III
City Prosecutors Office
Pasay City, 1300