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Republic of the Philippines

National Capital Judicial Region


Regional Trial Court
Branch 123, Pasig City

PEOPLE OF THE PHILIPPINES,


Plaintiff,
Criminal Case No. 12345-H
- versus - For: Violation of R.A. No. 6539
(Anti-Carnapping Act)
ROMULO TAKAD,
Accused.
x ----------------------------------x

MEMORANDUM

Accused ROMULO TAKAD, by counsel, to this


Honorable Court, respectfully submits this Memorandum and
states that:

STATEMENT OF THE CASE

1. On 22 November 2007, accused ROMULO TAKAD


(accused) was charged with the crime of Carnapping as
defined and penalized under Sections 2 and 14 of Republic
Act No. 6539 (R.A. No. 6539) otherwise known as the Anti-
Carnapping Act of 1972.1

STATEMENT OF THE FACTS

2. Sometime in May 2007, Bayan Development


Corporation (BDC) extended a group loan to SCCPPTODA 2
(Samahan), through its Account Officer Zenny Aguirre
(Aguirre) amounting to ₱480,000.00, which is divided
among the group’s six members. Relative to this, a
Kasunduan was entered into by the BDC and Samahan on
March 2007. Under the said Kasunduan, the six members
were to receive ₱80,000.00 each, payable for 30 months
with 36 percent interest rate per annum and that amount
must be used for purchasing a tricycle. Ma. Teresa
Lacsamana (Lacsamana), one of six members of the group,
used the loaned amount to purchase a tricycle from BDC.2

1
Information dated 22 November 2007, p.1.
2
Kasunduan dated 19 March 2007, pp.1-2.

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

3. In July 2007, Lacsamana defaulted in the


installment payment of the loan for the tricycle. Thereafter,
BDC pulled out the tricycle from Lacsamana. Aguirre then
requested Lacsamana and the accused to bring the tricycle
to the house of Ricardo Marasigan (Marasigan), the
treasurer of the Samahan, to be put his custody.3

4. Lacsamana and Aguirre then came up with a


verbal agreement that Lacsamana could redeem the tricycle
by paying her arrears by October 17, 2007. Lacsamana
mortgaged her car to raise the money for the payment.
However, the accused and Lacsamana arrived late on
October 17, 2007 at BDC. Despite their pleas to Aguirre to
accept their payment, she did not accept it. The accused and
Lacsamana went to Marasigan the following day and learned
that the tricycle was already pulled out by BDC from
Marasigan. The party went to BDC to plea to Aguirre to
accept their payment for the tricycle but was denied. The
accused then uttered, “Huwag na huwag kong makikita ang
tricycle na yan sa Pasig”, because he will be hurt if he will
see it used by others in their place.4

5. On 20 November 2007, BDC gave the tricycle to


Carlos Parlade (Parlade), the new assignee.5 At around 1
o’clock in the morning of 21 November 2007, Parlade saw
someone pushing the tricycle away from his house. He
shouted at the person saying, “Hoy, bat dala-dala mo iyang
motor!” But the person kicked start the engine and then
drove away. Parlade then contacted Aguirre to inform her of
the taking of the tricycle.6

6. Afterwards, in the early morning of 21 November


2007, the accused was arrested. At 5 o’clock in the
afternoon of the same day, Parlade went to the police
station and positively identified the accused as the culprit in
the carnapping of the tricycle.7

STATEMENT OF THE ISSUES

7. Given the foregoing facts and circumstances, the


following issues are presented for discussion:

3
TSN, p.4.
4
Ibid. p.28.
5
Ibid. p.5.
6
Ibid. pp.11-12.
7
Ibid.p.17.

2
Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

THE PROSECUTION MISERABLY


FAILED TO PROVE BEYOND
REASONABLE DOUBT THAT THE
ACCUSED COMMITTED THE CRIME
OF CARNAPPING.

II

THE PROSECUTION MISERABLY


FAILED TO EXTABLISH THE
IDENTITY OF THE ACCUSED AS THE
PERSON WHO TOOK THE TRICYCLE.

III

THE CONCLUSION OF PARLADE


THAT THE ACCUSED IS THE ONE
COMMITTED THE CRIME OF
CARNAPPING IS BASED FROM HIS
REMARK TO AGUIRRE IS DERIVED
FROM HEARSAY EVIDENCE.

IV

THE WARRANTLESS ARREST MADE


TO THE ACCUSED IS INVALID.

ARGUMENTS

I. THE PROSECUTION
MISERABLY FAILED TO
PROVE BEYOND
REASONABLE DOUBT THAT
THE ACCUSED COMMITTED
THE CRIME OF
CARNAPPING.

8. Section 2 of Republic Act No. 6539, as amended,


defines "carnapping" as “the taking, with intent to gain, of a
motor vehicle belonging to another without the latter's

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

consent, or by means of violence against or intimidation of


persons, or by using force upon things."8

9. The elements of the crime of carnapping are that:


(1) there is an actual taking of the vehicle; (2) the offender
intends to gain from the taking of the vehicle; (3) the
vehicle belongs to a person other than the offender himself;
and (4) the taking is without the consent of the owner
thereof, or it was committed by means of violence against or
intimidation of persons, or by using force upon things.9

10. Carnapping is essentially the robbery or theft of a


motorized vehicle, the concept of unlawful taking in theft,
robbery and carnapping being the same.10

11. In the present case, all the elements of the crime


of carnapping are not present.

12. First, the prosecution failed to establish beyond


reasonable doubt that the crime of carnapping was
committed by the accused. The lone basis of the prosecution
to conclude that the accused committed the crime was the
accused’s remark to Aguirre, “Huwag na huwag kong
makikita ang tricycle na yan sa Pasig”, when the latter
denied the accused and Lacsamana’s plea to her to accept
their tender of payment for the tricycle. Aguirre told this to
Parlade, which made him believe that the accused is the one
he saw taking the tricycle, although he did not see the
accused before he identified him as the culprit in the
afternoon of 21 November 2007 at the police station. This is
evidenced by the testimony made by Parlade, as culled from
the TSN taken at the hearing of this case on 27 January
2008, viz:

xxx

Q: After the taking of the tricycle, you spoke to


Zenny Aguirre of BDC, is that right?
A: Yes, sir.

Q: And she told you that in October, Takad


warned her against seeing the tricycle in Pasig?
A: Yes, sir.

Q: But when you saw Zenny, you had not


met the accused Takad, is that right?
A: Yes, sir.

8
People vs. Mallari, G.R. No. 179041, April 1, 2013, 694 SCRA 284.
9
People vs. Fieldad et al., G.R. No. 196005, October 1, 2014.
10
People vs. Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x
Q: I understand that you went back to the
police station on November 21, at 5:30 in
the afternoon?
A: Yes, sir.

Q: The police told you that Takad has been


arrested and you have come back and
identify him, is that right?
A: Yes, sir.

Q: When you went to the police station,


they led you into a room and the
investigator pointed Takad to you, is that
right?
A: Yes, sir.

Q: And he asked you is he was the one


who took the tricycle?
A: Yes, sir.

Q: In other words, you were not shown


the accused Takad in a police line up with
other persons of the same built so you
could try to pick him out as the tricycle
thief?
A: No, sir.

Q: When you saw him at the police station,


was his appearance and physical built the
same as when you saw him take the tricycle?
A: Yes, sir.

Q: Is his appearance and built now the same


as when you saw him take the tricycle on
November 21, 2007?
A: It seems he changed.

Q: What change did you notice?


A: He became fairer now.

Q: That is the only change you noticed?


A: Yes, sir.

xxx

13. Second, there is no intent to gain due on the part


of the accused because in the first place, the prosecution
miserable failed to establish the identity of the accused as
the one perpetrated the crime of carnapping. In addition to
that, when the accused was arrested in the early morning of
21 November 2007, he was still sleeping and the tricycle,
subject of this case, was not found in his possession. The
remark of the accused to Lacsamana, “Huwag na huwag
kong makikita ang tricycle na yan sa Pasig”, cannot be made
the basis for the conclusion that the accused intends to take
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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

the tricycle once he sees it in Pasig, as he only uttered it due


to the fact that the tricycle already has a sentimental value
to him.11

14. Third, the tricycle, subject matter of this case, is


presumed to be owned by BDC. However, based from the
facts of the case, it clearly shows that it is owned by
Lacsamana, as the loan obtained by Lacsamana from BDI is
the money she used to purchase the tricycle, and the
tricycle did not came directly from BDC.12 When the tricycle
was pulled out from Marasigan, BDC did not get court order
transferring the ownership of the tricycle from Lacsamana to
BDC, as the tricycle is still registered under the name of
Lacsamana as evidenced by the Certificate of Registration13
and Official Receipt14.

15. Fourth, the fourth element of the crime was not


properly established. Although the taking of the tricycle is
done without the consent of the owner thereof, it was not
proven beyond reasonable doubt by the prosecution that it
was the accused who took the tricycle and likewise, not
proven that the accused committed it by means of violence
against or intimidation of persons, or by using force upon
things.

16. Thus, all the elements of the crime of carnapping


are not proven to be present in this case.

II. THE PROSECUTION


MISERABLY FAILED TO
EXTABLISH THE IDENTITY
OF THE ACCUSED AS THE
PERSON WHO TOOK THE
TRICYCLE.

17. Private complainant Parlade’s basis of concluding


that the accused committed the crime of carnapping is the
statement made to him by Aguirre about the remark made
by the accused to her, “Huwag na huwag kong makikita ang
tricycle na yan sa Pasig”, when she denied the accused and
Lacsamana’s plea to her to accept their payment. As
discussed earlier, Parlade saw accused for the first time
when he saw him in the police station in the afternoon of 21
November 2007, when he reported the incident. He has no
idea what the accused looks like, yet he already concluded

11
TSN, pp. 32-33.
12
TSN, pp.7-8.
13
Exhibit “B”.
14
Exhibit “B-1”.

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

that the one he saw taking the tricycle is the accused.


However, there is an apparent discrepancy on his
identification of the accused on his sworn statement15, on his
testimony, and physical appearance of the accused, viz:

xxx

Q: When you saw him at the police station,


was his appearance and physical built the
same as when you saw him take the tricycle?
A: Yes, sir.

Q: Is his appearance and built now the same


as when you saw him take the tricycle on
November 21, 2007?
A: It seems he changed.

Q: What change did you notice?


A: He became fairer now.

Q: That is the only change you noticed?


A: Yes, sir.

xxx

Q: When you say in Tagalog that “ang katawan


ng tao ay manipis”, does that mean that he is
slim?
A: Yes, sir.

Q: And when you say that his body is,


“katamtaman ang laki”, does that mean that is
medium built?
A: Yes, sir.
Q: And when you say that the body is
“malapad”, that means that he is somewhat
big?
A: Yes, sir.

Q: Will you please read to us from item 14


of your affidavit the description of the
built of the person whom you saw stole
the tricycle?
A: “Answer: Medyo malapad ng konti ang
katawan at medyo maiksi ang buhok.”

ATTY. CRUZ: May I request the accused


Takad to stand up. Will you agree with me
that the body of the accused Takad is
medium built only?
A: I cannot tell.

ATTY. CRUZ: (Talking to the accused) How


tall are you?
A: “5’5 ½”

15
Exhibit “E”.

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

Q: What is your weight?


A: 120 pounds.

ATTY. CRUZ: That would be all your honor.

18. The Supreme Court in the case of People v. Cruz


emphatically stated that trial courts should be more wary
and careful in assessing conflicting, ambiguous, or non-
relevant testimony. More important than apprehending and
convicting criminals is faithful adherence to due process, the
need to accord to every accused the protections guaranteed
to him or her by the Constitution.16

19. Too, as culled from the facts of the case, at the


time Parlade saw a person taking his tricycle, the accused
was sleeping at his home at Palatiw, Pasig City. He was in
fact surprised when he woke up being arrested by the
police.17

20. Thus, based from the facts and evidence


presented, it shows crystal clear that the prosecution
miserably failed to establish the identity of the accused as
the one who perpetrated the crime of carnapping.

III. THE CONCLUSION OF


PARLADE THAT THE
ACCUSED IS THE ONE
COMMITTED THE CRIME OF
CARNAPPING IS BASED
FROM HIS REMARK TO
AGUIRRE IS DERIVED
FROM HEARSAY EVIDENCE.

21. The Supreme Court, in numerous cases, ruled that


under Rule 130, Section 36 of the Rules of Court, a witness
can testify only to those facts which he knows of his own
personal knowledge, i.e., which are derived from his own
perception; otherwise, such testimony would be hearsay.
Hearsay evidence is defined as "evidence not of what the
witness knows himself but of what he has heard from
others." The hearsay rule bars the testimony of a witness
who merely recites what someone else has told him,
whether orally or in writing. In Sanvicente v. People, the
court further held that when evidence is based on what was
supposedly told the witness, the same is without any

16
G.R. No. 87884, November 4, 1992.
17
TSN, p.30.

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

evidentiary weight for being patently hearsay. Familiar and


fundamental is the rule that hearsay testimony is
inadmissible as evidence.18

22. The remark of the accused to Aguirre cannot be


made the basis of conclusion that the accused is the one
who committed the crime, as Parlade does not have any
first-hand information about the incident leading the accused
to say that. Without a doubt, the conclusion made by
Parlade that the accused is the one committed the crime of
carnapping is based from his remark to Aguirre is derived
from hearsay evidence.

IV. THE WARRANTLESS


ARREST MADE TO THE
ACCUSED IS INVALID.

23. Section 2, Article III of the 1987 Constitution


requires a judicial warrant based on the existence of
probable cause before a search and an arrest may be
effected by law enforcement agents. Without the said
warrant, a search or seizure becomes unreasonable within
the context of the Constitution and any evidence obtained
on the occasion of such unreasonable search and seizure
shall be inadmissible in evidence for any purpose in any
proceeding.19

24. Under Section 5 of Rule 113 of the Rules of Court,


a lawful arrest may be effected even without a warrant of
arrest in the following instances:

Sec. 5. Arrest without warrant; when lawful. -


A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person


to be arrested has committed, is actually
committing, or is attempting to commit an
offense;

(b) When an offense has in fact just


been committed, and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and

(c) When the person to be arrested is


a prisoner who has escaped from a penal

18
People vs. Guittap, G.R. No.144621, May 9, 2003; Calicdan vs. Sendana, G.R. No. 155080, February 5,
2004.
19
Villamor et al. vs. People, G.R. No. 200396, March 22, 2017.

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Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x
establishment or place where he is serving
final judgment or temporarily confined while
his case is pending, or has escaped while being
transferred from one confinement to another.

25. In cases falling under paragraphs (a) and (b)


above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and
shall be proceeded against in accordance with Section 7 of
Rule 112.20

26. In warrantless arrests made pursuant to Section


5(a), Rule 113, two elements must concur, namely "(a) the
person to be arrested must execute an overt act indicating
that he has just committed, is actually committing, or is
attempting to commit a crime; and (b) such overt act is
done in the presence or within the view of the arresting
officer.”21

27. In this case, the police officers did not served any
warrant when they arrested the accused. They merely based
their presumption that the accused is the one who
committed the crime of the carnapping on the assumption of
Parlade that the accused is the one who took the tricycle.

28. Indubitably, the police officers violated the


constitutional right of the accused to be secured in his
house. At the time of the arrest, the accused has not
committed, is not actually committing, or is not attempting
to commit an offense charged to him and that the police
officers have no probable cause to believe based on their
personal knowledge of facts or circumstances that the
person to be arrested has committed the offense charged to
him. In fact, the accused was surprised of the arrest. In
addition, the tricycle subject of the case, was not recovered
in the possession of the accused nor found in the premises
surrounding his house.

29. Therefore, the warrantless arrest made by the


police officers to the accused is invalid.

30. Based from the foregoing, the prosecution


emphatically failed in establishing that the accused
committed the crime of carnapping beyond reasonable
doubt.

20
People v. Villareal, 706 Phil. 511, 517-518 (2013).
21
Ibid.

10
Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

PRAYER

WHEREFORE, it is respectfully prayed of this


Honorable Court that judgment be rendered ACQUITTING
the accused of the crime charged, the same being in
accordance with the law and evidence.

The accused likewise prays for costs and for such other
and further relief as this honorable court may deem just and
equitable in the premises.

Makati City, 5 May 2018.

ATTY. PAULO A. CRUZ


Counsel for the Accused
Roll No. 12456/IBP Lifetime No. 05678
MCLE Compliance No. V-0000245, 11-10-15
Email address:atty.paulo.cruz@outlook.com
No. 124 Mabangis St., Diliman, Quezon City

Copy furnished through personal service:

PROSEC. ISIDRO T. DE LEON


Hall of Justice, Pasig City Hall,
Pasig City

Copy furnished through registered mail:

BAYAN DEVELOPMENT CORPORATION


Ortigas Center, Pasig City
Registry Receipt No. 000012
Pasig City Central Post Office
5 May 2018

Copy furnished through registered mail:


ZENNY AGUIRRE
Bayan Development Corporation
Ortigas Center, Pasig City
Registry Receipt No. 000013
Pasig City Central Post Office
5 May 2018

11
Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

Copy furnished through registered mail:

CARLOS PARLADE
#84 West Road, Maybunga, Pasig City
Registry Receipt No. 000014
Pasig City Central Post Office
5 May 2018

EXPLANATION

The foregoing Memorandum is being served by


registered mail, personal service not being practicable due
to lack of manpower.

ATTY. PAULO A. CRUZ

Republic of the Philippines )


Quezon City ) s.s.

AFFIDAVIT

I, Ricardo Dalisay, a messenger of Atty. Paulo A. Cruz


with office address at 124 Mabangis St., Diliman, Quezon
City after being duly sworn, deposes and states:

That on 5 May 218, I served a copy of the following


pleadings/papers by registered mail in accordance with
Section 10, Rule 13 of the Rules of Court:

Nature of Pleading/Paper
MEMORANDUM

in Case No. 12345-H entitled PEOPLE OF THE PHILIPPINES


v. ROMULO TAKAD by depositing a copy in the post office in
a sealed envelope, plainly addressed BAYAN
DEVELOPMENT CORPORATION, ZENNY AGUIRRE, AND
CARLOS PARLADE at Quezon City with postage fully paid,
as evidenced by Registry Receipt No. 000012, 000013, and
000014, respectively, attached and with instructions to the
post master to return the mail to sender after ten (10) days
if undelivered.

12
Memorandum
People vs. Romulo Takad
Criminal Case No. 12345-H
x------------------------------------x

TO THE TRUTH OF THE FOREGOING, I have signed this


Affidavit on 5 May 2018, in the City of Quezon City,
Philippines.

RICARDO DALISAY

SUBSCRIBED AND SWORN TO before me in Quezon


City on this day of 5 May2018, affiant exhibiting before me
his Government Issued ID no.7890 issued on 20 November
2012 at Quezon City.

ATY. JUAN THAMAD


Notary Public

Until 28 January 2019


PTR No. 1245
Quezon City
On 28 January 2014

Doc. No.00012
Page No.245
Book No.2
Series of 2018

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