REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

CA-G.R. No. 43612

- versus-

IMELDA MERIDAY ALBUFERA,

Accused-Appellant,

APPELLANT’S BRIEF

ATTY. ROSALINDA A. MONTENEGRO

Counsel de Officio for the Accused
Unit 312, ACRE Building, 137 Malakas St.,
Barangay Central, Quezon City
Roll of Attorney's No. 68465
PTR No. _______; Issued: 1/04/19 Quezon City
IBP OR No. AR 4792020 CY / 1/04/19 -Quezon City
MCLE Compliance No. VI-0005347
April 14, 2022
 REPUBLIC OF THE PHILIPPINES
COURT OF APPEALS

PEOPLE OF THE PHILIPPINES

Plaintiff and Appellee

CA-G.R. CR. NO. 43612

RTC BR.229, QUEZON CITY
RTC CASE NO. RQZN 17-04599
FOR: Viol of Sec. 10(a) RA 7610

-VERSUS-

IMELDA MERIDA
Accused/ Appellant,
x--------------------------------x

APPELLANTS BRIEF

THE ACCUSED Imelda Merida , by undersigned counsel,

respectfully states:

I. PREFATORY STATEMENT

This case is a test of the fortitude of our institutions of law against

attacks to its foundation—justice as fairness. The idea that no person
shall be deprived of life, liberty, or property without due process of
law is so fundamental because it is the shield that protects the citizen
from an overbearing State, and the wall that guards the separation
between law and politics.

This case is a test of the fortitude of our institutions of law against

attacks to its foundation—justice as fairness. The idea that no person
shall be deprived of life, liberty, or property without due process of
law is so fundamental because it is the shield that protects the citizen
from an overbearing State, and the wall that guards the separation
between law and politics.
While Petitioner has very strong views about the inherent unfairness
of the process that has been manipulated to ensure her pre-trial
detention for non-bailable charges, she believes that the truth about
her case is accurately reflected in the Decision of the majority of the
Members of the Honorable Court itself and the emphatic dissents of
its other members.

Nothing proves the truth of the matter in this case and the injustice
that Petitioner has been made to bear more than a straightforward
analysis of the Decision in this case—what it says and does not say;
the internal incoherence of its arguments; the incompatible positions
of members of the majority; and the sense of deep frustration and
utter disbelief of some of the dissenting justices.

Just as it is important for Petitioner to point out to the Members of the

Honorable Court the evident deficit in reasoning in the Decision, it is
equally important for Petitioner to place on record, for the sake of
posterity, her fundamental arguments as to why the criminal
prosecution against her should not be allowed to prosper and her
liberty be not restrained any further.

Ultimately, the Members of the Honorable Court must realize that

this case goes beyond the freedom of a single citizen who has been
singled out by the President of the Republic whose attacks against
her and what she stands for continue unabated.1 It is about the
quality of our democracy, the value of the Bill of Rights, and the
stability of our institutions.
1

Attached as Annex “A” is a compilation of President Duterte’s documented public statements

against Senator De Lima from August 16, 2016 to October 13, 2017. (A compilation of statements
from the period 11 August up to 28 November 2016 was attached as Annex “A” to the
Petitioner’s Compliance dated 17 March 2017; and a compilation of such statements for the
period starting 15 May 2015 to 06 April 2017 was attached as Annex “A” to Petitioner’s
Memorandum dated 17 April 2017.)

Motion for Reconsideration Page 3

De Lima v. Judge Guerrero, et al. G.R. NO. 229781

Filipinos are looking. The world is watching.

This case is a test of the fortitude of our institutions of law against

attacks to its foundation—justice as fairness. The idea that no person
shall be deprived of life, liberty, or property without due process of
law is so fundamental because it is the shield that protects the citizen
from an overbearing State, and the wall that guards the separation
between law and politics.
While Petitioner has very strong views about the inherent unfairness
of the process that has been manipulated to ensure her pre-trial
detention for non-bailable charges, she believes that the truth about
her case is accurately reflected in the Decision of the majority of the
Members of the Honorable Court itself and the emphatic dissents of
its other members.

Nothing proves the truth of the matter in this case and the injustice
that Petitioner has been made to bear more than a straightforward
analysis of the Decision in this case—what it says and does not say;
the internal incoherence of its arguments; the incompatible positions
of members of the majority; and the sense of deep frustration and
utter disbelief of some of the dissenting justices.

Just as it is important for Petitioner to point out to the Members of the

Honorable Court the evident deficit in reasoning in the Decision, it is
equally important for Petitioner to place on record, for the sake of
posterity, her fundamental arguments as to why the criminal
prosecution against her should not be allowed to prosper and her
liberty be not restrained any further.

Ultimately, the Members of the Honorable Court must realize that

this case goes beyond the freedom of a single citizen who has been
singled out by the President of the Republic whose attacks against
1
quality of our democracy, the value of the Bill of Rights, and the
stability of our institutions.
1

Attached as Annex “A” is a compilation of President Duterte’s documented public statements

against Senator De Lima from August 16, 2016 to October 13, 2017. (A compilation of statements
from the period 11 August up to 28 November 2016 was attached as Annex “A” to the
Petitioner’s Compliance dated 17 March 2017; and a compilation of such statements for the
period starting 15 May 2015 to 06 April 2017 was attached as Annex “A” to Petitioner’s
Memorandum dated 17 April 2017.)

Motion for Reconsideration Page 3

De Lima v. Judge Guerrero, et al. G.R. NO. 229781

Filipinos are looking. The world is watching.

While Petitioner has very strong views about the inherent

unfairness of the process that has been manipulated to ensure her
pre-trial detention for non-bailable charges, she believes that the
truth about her case is accurately reflected in the Decision of the
majority of the Members of the Honorable Court itself and the
emphatic dissents of its other members.

Nothing proves the truth of the matter in this case and the injustice
that Petitioner has been made to bear more than a straightforward
analysis of the Decision in this case—what it says and does not say;
the internal incoherence of its arguments; the incompatible positions
of members of the majority; and the sense of deep frustration and
utter disbelief of some of the dissenting justices.

Just as it is important for Petitioner to point out to the Members of the

Honorable Court the evident deficit in reasoning in the Decision, it is
equally important for Petitioner to place on record, for the sake of
posterity, her fundamental arguments as to why the criminal
prosecution against her should not be allowed to prosper and her
liberty be not restrained any further.

Ultimately, the Members of the Honorable Court must realize that

this case goes beyond the freedom of a single citizen who has been
singled out by the President of the Republic whose attacks against
her and what she stands for continue unabated.1 It is about the
quality of our democracy, the value of the Bill of Rights, and the
stability of our institutions.
1
 Not every instance of the laying of hands on a child constitutes the
crime of child abuse under Section 10 (a) of Republic Act No.
7610.1 Only when the laying of hands is shown beyond reasonable
doubt to be intended by the accused to debase, degrade or demean
the intrinsic worth and dignity of the child as a human being should it
be punished as child abuse. Otherwise, it is punished under the
Revised Penal Code.

II. TIMELINESS OF THE FILING OF THE PLEADING

III. ASSIGNMENT OF ERRORS

THE RTC COURT WAS UNABLE TO PROVE MOTIVE IN

CONVICTING THE ACCUSED.

THE ELEMENTS OF THE CRIME OF CHILD ABUSE ARE

NOT PRESENT

THE PROPER CRIME CHARGE SHOULD BE SLIGHT

PHYSICAL INJURY UNDER ART. 265 OF THE REVISED
PENL CODE

THAT THE COURT ERRED IN APPLYING THE

INDETERMINATE SENTENCE LAW.

IV. STATEMENT OF FACTS

1. The instant case stemmed from the complaint filed by

Jojo Callueng in behalf of her daughter Princess Mitzi Magda A.
Callueng against the accused Imelda A. Merida for Violation of
Section 10 (a) Article VI Republic Act 7610. Thereafter arraignment
and pre trial was set and trial ensued

In the information filed, the prosecution states as follows:

CRIM CASE NO. RQZN 17-04599-CR

That on or about the 25th day of January

 2016, in Quezon City, Philippines the above
named accused did then and there, willfully,
unlawfully and feloniously commit the act of
child abuse upon PRINCESS MITZI MAGDA A.
CALLUENG a minor, 9 years of age, by then
and there pulling her hair and shouting
unsavory remarks at her to wit” “hoy babae ka
ikaw ba yung naglagay ng buhangin sa anak
ko? Paano kung nabulag yung anak ko bwiset
ka! Gusto mo sampalin kita! Which acts
debases, degrades and demeans the intrinsic
worth and dignity of said child as a human
being, to her damage and prejudice.

CONTRARY TO LAW

V. PROSECUTION EVIDENCE.

A. WITNESSES.

2. The prosecution presented three witnesses, namely, the

private complainant Jojo Callueng and Princess Mitzi Magda A.
Callueng.

3. In his direct testimony private complainant Jojo Callueng

basically states that he is the father of Princess Mitzi Magda A.
Callueng a minor and presented a certificate of live certificate, that
she filed a case against the accused Imelda Merida. He claims that
on January 25, 2016 at around 7:00 to 7:30, he saw his daughter
crying and told him that the accused pulled her hair. After the
alleged incident, the father and daughter went to the barangay to
report the incident . At the barangay, the complainant’s daughter
narrated the incident afterwards they went to the house of the
accused, but she was not around as the accused went to the hospital
for a medical. That when they did not find the accused in her house,
private complainant and his daughter went back to the barangay.
There they were advised to go to a hospital and subject his daughter
for a medical check up. That they went to the Quirino Medical Center
for a medical but nothing was seen on his daughter Mitzi. So they
went back to the barangay, there he was ask if he wants to get back
at the accused, he answered “ huwag na sampahan nalang
naming ng kaso.” That a hearing on February 2, was conducted
but there was no settlement. The VAWC officer talked with his
daughter. When asked what is his proof that he brought his
daughter to the doctor like he said, private complainant handed a
Psychiatric Evaluation Summary of his daughter Princess Mitzi Magda
Callueng. He states that the psychiatric evaluation was done by Dr.
Bustamante. That he was advised by the doctor to continue bringing
his daughter Mitzi for check up so that she will get well but private
complainant Jojo Callueng decided to just support his daughter,
guide her and just let the court decide. Thereafter, private
complainant claims that the accused filed several cases against him
to harass him. That he felt anger when he learned that the accused
physically hurt his daughter. When asked what does he want to
happen in this case, he said that he just want the truth to be told.
That private complainant admits that he has a previous quarrel with
the family of Imelda Merida with regard to the lot sold to the
accused by his brother Wilfredo Callueng.

4. During cross examination, defense counsel asked if he saw the

accused pulling his daughter’s hair? The answer was no. That
private complainant testified that VAWC Head Atty. Alajar at the
barangay advice him to bring his daughter Mitzi to the Philippine
General Hospital. When asked his observation of his daughter prior
to bringing his daughter to the PGH, his response was that he did
not noticed at first but lately he realized that looking back on the
events that happened he was surprised that his daughter was quiet,
That sometimes when asked what’s her problem, her daughter will
not answer and will simply stare. That his wife noticed that Mitzi’s
grades went down. That defense noticed that the incident happened
on January 25, 2016 and that initial mental status Evaluation of his
daughter conducted at the Philippine General Hospital was done on
May 5, 2016. That despite the May 5, date indicated in the Initial
Mental Status Evaluation private complainant claims that his daughter
went to see a doctor on April 20 and 21. That he could not recall
when did he noticed something different about his daughter. That
private complaint admitted that the doctor requested for a check up
follow up but he did not comply. His reason is that he lost the
number of the doctor , that he could not text anymore. Second
because it is expensive, that the doctor just advised him to guide
and support his daughter. That he admitted that he had an
altercation with the family of the accused with regard to a property.
That there are no other case filed against the accused Merida. That
private complainant admits that he knew about the incident that his
daughter pour sand in the eyes of the accused’s son. That he claims
he confronted his daughter about the incident, that his daughter
admits to the wrong doing. That he did not tell his daughter Mitzi on
that day of the incident that what she did was wrong because he was
more concern of his daughter who was crying in front of him.
 5. For the next prosecution witness, prosecution presents the
alleged victim Princess Magda A. Calueng. On July 9, 2018 witness
testified that she is 12 yers old , a student and a resident of # 64 St.
Catherine Street, Barangay Holy Spirit, Quezon City, that she
presented a sinumpaang salaysay lodged at the Barangay Holy Spirit.
That she identified the accused as Imelda Merida who pulled her hair
sometime on January 25, 2016. That the prosecution asked the
witness how she knew the accused and where she knew about her?
The witness answered “Because her true name was told to me.” (
Kasi sinabi po sa akin ang totoong pangalan.) When asked “Kailan
mo siya nakilala? ( When did you meet her? Witness answered: she
knew the accused for quite some time. ( “Matagal tagal na po.)
But when the prosecution asked if she knew the accused before
January 25, 2016, witness said that she did not know her yet then.
(Hindi ko pa po siya kilala noon.) That when asked if that was the
first time she saw the accused on January 25, 2018? ( Aah pero
unang beses mo siyang nakita noon?) The answer was “No also” (
Hindi rin po ). Thereafter the prosecution asked that when the
accused pulled her hair how did she know that the accused was the
one who pulled her hair. The answer was “ Because I see her often
when she didn’t pulled my hair yet. ( Kasi po nakikita ko na po siya
palagi doon nong hindi pa po nya ako sinasabunutan.) That she
knew that the person who pulled her hair because she knew that
Imelda Merida is the mother of Kenro, since she always see them
together. That the accused pulled her left side of hair. That the
accused came from the side, and she didn’t see her coming then
suddenly, accused pulled her hair. That after pulling her hair,
accused told her “hoy babae ka ikaw ba nagsaboy ng buhangin sa
mata ng anak ko paano pag nabulag anak ko bwesit ka, gustomo
sampalin kita.” That she felt fear when the accused uttered said
words and because accused hurt her and she is not used to being
shouted at. That prosecution asked whether there were other
incidents or incidents in writing? The answer was yes. At that point,
witness handed a hand written salaysay executed after they filed a
complaint with the barangay. It was written by the witness in their
house, given to the father of said witness and submitted to the
barangay. The prosecution asked the witness to narrate what
happen, the witness stated that she were playing with the accused’s
son Kenro and Prince. She pretends to be the criminal while Kenro
and Prince are the police. That she went to a small alley to hide
when Kenro Lao frightened her. When she got frightened, she
unintentionally poured sand on Kenro the accused’s son. That the
prosecution narrated that they filed a complaint with the barangay,
where her father there she wrote her salaysay, her father brought it
to the barangay and asked what happened after the complaint with
the barangay? The answer was they went to a hospital as suggested
by the BCPC. That they went to the hospital as suggested by the
BCPC then they went back to the barangay. They were asked by the
barangay if they want to go back at the house of Imelda Merida the
accused, the father said no more as they will just file a complaint.
That the BCPC told them to make a salaysay. The father said They
will do it at home as it was already late. (“ Dun na lang sa bahay
kasi gabi na po.”). That they also went to another hospital which is
the Philippine General Hospital where she was asked how she felt
and what other things that she can no longer do after the incident
and what is happening to her that if she is doing fine. That the
prosecution asked that after the accused pulled her hair and uttered
words she was not used to hearing because she was not treated that
way at home, did she get scared? How did she feel that her
neighbor Imelda Merida the accused did that to her. The answer was
she was angry and a bit scared. That prosecution asked the witness
that after said incident, were there other incident with respect to the
accused or her family. The answer was yes, the accused’s husband
always stare at hersaid incident happened on February 3, 2016, that
at that same day accused’s husband Raymond Lao called her
“bwesit kang baboy ka.” That the incident was reported to the
barangay. That again the prosecution twice asked that if there are
other complaints with the accused other than the instant complaint,
the witness answered in the affirmative and said the accused
husband stares at her the said incident happened on April 8, 2016 .
That also accused Imelda Merida spit on her however the details of
said incident could not be recalled by the witness. That her father
decided not t file a complaint but since the accused did not stop,
they decide to filed the complaint as well. When aske how she feels
when she sees the accused Imelda Merida, the answer was nothing,
but when the p[osecution suggested if she was not scared? The
witness said a bit. When asked what she wants to happen with the
case, the witness answered that she wants the accused behind bars,
so that she will no longer hurt anyone. Witness states that the
accused also hurt her playmates MOrdyong and Edzel . That if she
knew of any quarrel between her family and the family of the
accused? The answer was Yes. That the quarrel was about a lot,
that she often hear her parents talked about it and it was relayed to
her. That when asked that even there was a conflict between the
accused and her parents, she still plays with accused’s son. They
answer is yes.

6. On cross examination, the defense asked whether the witness

knew that her parents as well as the accused and her husband have
a conflict. The answer was yes. That even when they have
differences, she was allowed by her parents to play with the
accused’s son? The answer was yes. That if she knew whther the
accused allows her son to play with her she does not know but
admits that she is playing with the accused’s son. That she does not
see the parents forbid their son to play with her. The answer was
yes. That the witness agrees that even before the incident happened
that despite the fact that her parents have a quarrel with the accused
, the accused and her husband never show ill treatment or utter
bad words at her her. That during that incident, defense inquired
about the incident that happened on January 25, 2016, the witness
answered that she was playing with Kenro, the accused so and
Prince. That they were running after her then she got frightened
that she threw sand on Kenro. That Prince was no longer with
Kenro when she threw sand on his eyes as Prince was by her left
side. When asked where was Kenro the witness could not say where
he was, when asked where was Prince at that time, the witness
Kenro and Prince were not together. When asked if he was by her
side, she said no. That she was asked if Prince was present when
she got frightened, she said she does not know because she did not
notice if Prince was there or not. That the defense clarified whether
Prince was with Kenro when they were running after her. Witness
answere in the negative. Only Kenro was running after her. When
asked the whereabouts of Prince, witness answered that he was a
few meters away from her. That when she understood the
question, as explaioned by the prosecution, she answered that she
does not know if Prince was present as she did not notice him. That
when she got frightened she threw sand on Kenro’s eyes. That the
witness saw Kenro cry beause of what she did to him and she said
sorry. That Kenro’s brother brought Kenro home. That witness
stated that soon after, accused Imelda Merida, the mother of Kenro
came very angry. That she understood that because she threw sand
on his son’s eyes, that it hurt that’s why the accused was angry.
That the defense stated that it was just natural for the for the mother
seeing her son get hurt be angry. That she might have said some
words just because she was upset. To this the witness agreed and
said “Opo!”

7. The defense also asked if there are other incidents that

occurred after the January 25, 2016 incident, that they filed cases.
The answer was yes they did file but they were dismissed. That the
defense inquired as to the salaysay that has a stamp indicated as
certified true copy, that when was the document executed in 2016 or
in 2018 as the said document was not dated. The same document
was not subscribed before a notary public not even the barangay
captain. The answer was no. That there was another salaysay
marked as exhibit Ä”, that was not subscribed or sworn to before a
notary public nor the to barangay and the witness likewise agreed.
 8. The prosecution conducted a re-direct and asked that when
the father asked her to make her salaysay, her father was present
and that she signed the same . The answer was yes. Then the
prosecution asked whether she was told by her father what to write
on the salaysay? That answer was no. Likewise the defense made
his re cross and asked the witness where was her father when she
was making her salaysay that he was looking at what she was doing?
The answer was that she did not know, because she was writing at
that time. That the witness after finishing here salaysay, signed the
same by her and her father.

9. For the third witness, the prosecution presents BCPC

Anavelie Tupaz. And proposed for stipulation that she is the
representative of the BCPC Barangay Holy Spirit, that she can
identify only the documents regarding the complaints of the minor
complainant as against the accused Merida as in their record for the
purpose of proving the allegations ion the information. The defense
admitted to the stipulation but presented a counter stipulation that
the witness has no personal knowledge of the allegation in the
complaints she can identify and these documents were not subscribe
before any solemnizing officer.

10. On the next scheduled hearing was for the presentation

of the psychologist from the Philippine General Hospital and minor
Prince. That on the scheduled hearing, instead of the Psychologist,
the prosecution presented Carlos Acuin Jr, the records custodian of
the Philippine General Hospital and brought the Patient Case Record
and Health Management records of Princess Mitzi Magda Callueng
from the PGH. The intended witness Dr. Bustamante is no longer
connected to the hospital.

11. The prosecution witness Prince Callueng testified after

which the prosecution rested its case.

B. PROSECUTION EXHIBITS.

That after the last witness was presented, the prosecution made its
forma offer of evidence as follows:

Exhibits Documents Purpose

A-A-1, A-2, A-3 Salaysay of Jojo Father of the Minor
Callueng ; Complainant, Minority of
Signature the complainant, Prove the
 Rejoinder ; allegations in the
Signature information
B,B-1 Birth Certificate of
Prove that he is the Father
the Minor of the minor-complainant,
Minority of the
Complainannt, Prove the
allegation in the
information, Part of the
testimony of the affiant
D, D-1, D-2 Handwritten Part of the testimony of the
statement of minor-complainant. Prove
Princess Magda the allegation prove the
Callueng before allegation in the
the Barangay Holy information and the identity
Spirit Office,; of the Accused part of the
Signature, testimony of the BCPC
Annavelie Tupaz and
prove the existence of the
documents in their records.
E, E-1 SS BCPC Form, Part of the testimony of the
Signature of the minor complainant, Prove
Minor the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records.
H, H-1, H-2, H-3, Psychiatyric Part of the testimony of
H-4 Evaluation and Jojo Callueng; prove minor
Summary, Blue was examined by Dr.
Card, Patient Case Bustamanate; part of the
Record and Health testimony of the PGH
Management Records Custodian; the
records minor has a record of
examination
J, J-1 BCPC Form Part of the testimony of the
Signature of the minor complainant, Prove
minor the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
 documents in their records.
K, K-1, K-2 Statement of the Part of the testimony of the
Minor K-1, K-2 minor complainant, Prove
the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records.
M BCPC Form Part of the testimony of the
Signature minor complainant, Prove
the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records
O BCPC Form
Signature Part of the testimony of the
minor complainant, Prove
the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records
Q BCPC Form Part of the testimony of the
Signature minor complainant, Prove
the allegations in the
information and the identity
of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records
S BCPC Form Part of the testimony of the
Signature minor complainant, Prove
the allegations in the
information and the identity
 of the Accused, part of the
testimony of the BCPC
VAWC Officer Annavelie
Tupaz and to prove the
existence of these
documents in their records

C. COMMENT PROPER

12. Re: Exhibit “A”, with submarkings, of the Offer, the accused
Merida objects to Purposes of the Offer, for the reason that the said
statements or allegations of purposes are self-serving, that the same
are mere conclusions of law, and that the same are not supported by
the evidence on record.

13. Re: Exhibit “B”, with submarkings, of the Offer, the accused
Merida objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are self-serving, that there
was no proper identification.

14. Re: Exhibit “D”, with submarkings, of the Offer, the accused
Merida objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are self-serving, there was
no showing that the document was executed in the Barangay.

15. Re: Exhibit “E”, with submarkings, of the Offer, the accused
Merida objects to the Purpose of the Offer, for the reason that the
said statements or allegations of purposes are self-serving, that the
same are mere blotter

16. Re: Exhibit “H”, with submarkings, of the Offer, the accused
Merida objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are Hearsay, not
authenticated and should be denied admission

17. . Re: Exhibit “J”, with submarkings, of the Offer, the accused
Merida objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are irrelevant and should
be denied admission
18. Re: Exhibit “K”, with submarkings, of the Offer, the accused
Merida objects to the Purposes of the Offer, for the reason that the
said statements or allegations of purposes are irrelevant and should
be denied admission.

19. Re: Exhibit “M”, “O”, “Q” & “S” the accused objects to the
Purposes of the Offer, for the reason that the said statements or
allegations of purposes are all irrelevant and should be denied
admission.

20. After the prosecution have formally offered their evidences and
the defenses proffered their objections, the court made its ruling.
Exhibits H,J,K,M O are denied admissions for the reasons stated
above , the other exhibits are admitted in evidence for the purposes
they were each offered .

21. That the defense posits that the prosecution has failed to
established the elements of the offense charged or any charge
included, thus a Demurrer To Evidence Without Leave Of Court /
Memorandum based on said ground that the prosecution was unable
to prove the guilt of the accused beyond reasonable. However in
an Order dated, the RTC court denied the Demurrer to Evidence/
Memorandum. Then on _______ a decision was rendered finding the
accused guilty beyond reasonable for the crime of Child Abuse. That
after fifteen days, accused appellant filed its Notice of Appeal.

VI. ARGUMENTS/ DISCUSSION

I. THE PROSECUTION WAS

UNABLE TO PROVE MOTIVE
IN CONVICTING THE
ACCUSED
X-----------------------------X
 II. THAT THE
PROSECUTION WAS NOT
ABLE TO PROVE THE
VIOLATION OF SEC. 10 (A)
ART. VI OF REPUBLIC ACT
7610 ALSO KNOWN AS CHILD
ABUSE.
X-------------------------------X

1. The private complainant accuses Imelda Merida of child

abuse for allegedly pulling the hair of private complainant’s minor
daughter Princess Mitzi Magda A. Callueng. In the information, the
prosecution charges the accused of willfully, unlawfully and
feloniously commit the act of child abuse upon PRINCESS MITZI
MAGDA A. CALLUENG a minor, 9 years of age, by then and there
pulling her hair and shouting unsavory remarks at her to wit” “hoy
babae ka ikaw ba yung naglagay ng buhangin sa anak ko? Paano
kung nabulag yung anak ko bwiset ka! Gusto mo sampalin kita!
Which acts debases, degrades and demeans the intrinsic worth and
dignity of said child as a human being, to her damage and prejudice.

2. In the instant case, the prosecution submits that the

acts committed by the accused against the minor child constitutes
child abuse because it debases, degrades and demeans the intrinsic
worth and dignity of said child as a human being, to her damage and
prejudice. During trial prosecution presented three witnesses – the
private complainant Jojo Callueng, his minor children Princess Mitzi
Magda Callueng and Prince Callueng also testified. Their testimonies
are all self-serving, they did not give any concrete details and
credible proofs to substantiate their allegation.

3. However in a recent Supreme Court ruling penned by now

Chief Justice of the Supreme Court, Chief Justice Lucas Bersamin
states that: Not every instance of the laying of hands on a child
constitutes the crime of child abuse under Section 10 (a) of Republic
Act No. 7610.1 Only when the laying of hands is shown beyond
reasonable doubt to be intended by the accused to debase, degrade
or demean the intrinsic worth and dignity of the child as a human
being should it be punished as child abuse. Otherwise, it is punished
under the Revised Penal Code. During trial, Jojo Callueng, the
father of the minor child testified that he only heard from his
daughter that the accused pulled her daughter’s hair. That he did
not see the act being committed. That he does not have any other
complaint against the accused other than the instant complaint.

4. During trial, minor child Princess Mitzi Magda A.

Callueng identified the accused as the one who pulled her hair on
January 25, 2016. That when the prosecution asked her how does
she feel when she saw the accused Imelda Merida. The child said
“wala naman po.” The said statement of the child manifests that
the act being complained of did not create the evil being sought to
prevent. Nowhere in the statements of the witness was the
prosecution able to establish the intent of the accused to debase,
degrade or demean the intrinsic worth of the child. Other than the
incident on January 25, 2016, accused do not have any issues with
the private complainant and his daughter. In fact, the accused’s
son continues to play with the private complainant’s daughter.

5. "When the acts complained of are inherently immoral,

they are deemed mala in se, even if they are punished by a special
law. Accordingly, criminal intent must be clearly established with the
other elements of the crime; otherwise, no crime is committed." 1
The accused is being charged of violation of Section 10(a), Article VI
of R.A. No. 7610, a special law. However, physical abuse of a child is
inherently wrong, rendering material the existence of a criminal
intent on the part of the accused. In the case at hand, the
prosecution was unable to prove the intent of the accused to debase,
degrade and demean the intrinsic worth of the child

Defense counsel submits that the prosecution was unable to

prove the elements of the crime of child abuse.

III. THAT THE ELEMENTS

OF THE CRIME OF CHILD
ABUSE ARE NOT PRESENT
X--------------------------X

6. The law under which the accused was being charge,

violation of Section 10 (a), Article VI of Republic Act No. 7610, which
relevantly states:

7. Section 10. Other Acts of Neglect, Abuse, Cruelty or

Exploitation and other Conditions Prejudicial to the Child’s
Development. –

1 Garcia v. CA, 519 Phil. 591, 596 (2006).

 (a) Any person who shall commit any other acts of child
abuse, cruelty or exploitation or be responsible for other
conditions prejudicial to the child’s development including
those covered by Article 59 of Presidential Decree No. 603, as
amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its
minimum period.

8. "Child Abuse" refers to the maltreatment, whether

habitual or not, of the child which includes any of the following:

(1) Psychological and physical abuse, neglect, cruelty, sexual

abuse and emotional maltreatment;

(2) Any act by deeds or words which debases, degrades

or demeans the intrinsic worth and dignity of a child as
a human being;

(3) Unreasonable deprivation of his basic needs for survival,

such as food and shelter; or

(4) Failure to immediately give medical treatment to an injured

child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.

9. In the instant case, the testimonies of the witnesses of

the prosecution did not establish beyond reasonable doubt that the
accused indeed pulled the hair of the private complainant’s daughter
much less had been intended to debase the "intrinsic worth and
dignity" of Princess Mitzi Magda A. Callueng as a human being, or
that he had thereby intended to humiliate or embarrass her.

10. It is not trite to remind that under the well-recognized

doctrine of pro reo every doubt is resolved in favor of the petitioner
as the accused. Thus, the Court should consider all possible
circumstances in his favor.18

12. The accused Imelda Merida humbly submits that THE

PRESUMPTION OF INNOCENCE HAS NOT BEEN
OVERTURNED.

Under the EQUIPOISE RULE, when there is equilibrium in the

evidence presented by both sides, the CONSTITUTIONAL
PRESUMPTIOM OF INNOCENCE should tilt the balance of the scale in
favor of the acquittal of the accused, for, in such a situation, the
offense has not been proven beyond reasonable doubt, which is the
quantum of evidence required to convict an accused.

13. Suspicion alone is insufficient, the required quantum of

evidence being proof beyond reasonable doubt. [People v. Gargar,
300 SCRA 542 (1998). [See also: En Banc, Justice Mendoza,
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FIDEL ABRENICA CUBCUBIN, JR., accused-appellant, G.R.
No. 136267. July 10, 2001].

14. Only by proof beyond reasonable doubt, which requires

moral certainty, may the presumption of innocence be overcome
(People vs. Custodio, 47 SCRA 289 [ 1972]).

15. Moral certainty has been defined as "a certainty that

convinces and satisfies the reason and conscience of those who are
to act upon it" (People vs. Lavarias, 23 SCRA 1301
[1967]). Absent the moral certainty that accused-appellant caused
the death of the victim, acquittal perforce follows.

16. The accused Merida humbly submits that HER GUILT

HAS NOT BEEN PROVEN PROOF BEYOND REASONABLE
DOUBT.

Proof beyond reasonable doubt is needed to overcome the

presumption of Innocence (People vs. Reyes, 60 SCRA 126 [1974]).

17. Courts should be guided by the principle that it would be

better to set free ten men who might be probably guilty of the crime
charged than to convict one innocent man for a crime he did not
commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588.
June 8, 2000].

On the penalties imposed by the courts a quo

The RTC imposed upon the petitioner an indeterminate sentence of four

(4) years, nine (9) months, and eleven (11) days of prision correccional as
minimum, to seven (7) years and four (4) months of prision mayor as
maximum.

Subsequently, the CA modified the sentence to four (4) years, nine (9)
months and eleven (11) days of prision correccional, as minimum, to six
(6) years, eight (8) months and one (1) day of prision mayor, as
maximum.

Section 1 of the Indeterminate Sentence Law (IS

Law)32 provides:ChanRoblesVirtualawlibrary

Section 1. Hereafter, in imposing a prison sentence for an offense

punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.
There are, however, instances when the penalties provided for in a special
law adopt the nomenclature of the penalties under the RPC. In such cases,
the ascertainment of the indeterminate sentence will be based on the rules
applied for those crimes punishable under the RPC.33chanrobleslaw

In Sanchez v. People, et al.,34 the Court is emphatic

that:ChanRoblesVirtualawlibrary

[T]he penalty for Other Acts of Child Abuse is prision mayor in its minimum
period. This penalty is derived from, and defined in, the [RPC]. Although
R.A. No. 7610 is a special law, the rules in the [RPC] for graduating
penalties by degrees or determining the proper period should be applied.
Thus, where the special law adopted penalties from the [RPC], the [IS
Law] will apply just as it would in felonies. In People v. Simon, the Court
applied the first clause of Section 1 of the [IS Law] to cases of illegal
drugs. In Cadua v. Court of Appeals, the Court applied the same principle
to cases involving illegal possession of firearms. In those instances, the
offenses were also penalized under special laws. Finally, in Dulla v. Court
of Appeals, a case involving sexual abuse of a child as penalized under
Section 5(b), Article III of R.A. No. 7610, the Court likewise applied the
same first clause of the [IS Law]. x x x.35 (Citations omitted)
In the petitioner's case, the maximum imposable penalty is prision
mayor in its minimum period. The minimum period is fuither subdivided
into three, to wit: (a) six (6) years and one (1) day to six (6) years and
eight (8) months, as minimum; (b) six (6) years, eight (8) months and one
(1) day to seven (7) years and four (4) months, as medium; and (c) seven
(7) years, four (4) months and one (1) day to eight (8) years, as
maximum.36 As there were no established attendant mitigating or
aggravating circumstances, the CA properly imposed the penalty of six (6)
years, eight (8) months and one (1) day as the maximum of the
indeterminate sentence.

As to the minimum of the indeterminate sentence, Section the IS Law

provides that it shall be within the range of the per next lower to that
prescribed for the offense. The penalty next to prision mayor in its
minimum period is prision correccional maximum period. The CA imposed
four (4) years, nine (9) months eleven (11) days of prision correccional,
which falls within the maximum range thereof. The CA imposed the
minimum indeterminate penalty w the allowable range, and the Court now
finds no compelling reaso modify the same.
On the penalties imposed by the courts a quo

The RTC imposed upon the petitioner an indeterminate sentence of four

(4) years, nine (9) months, and eleven (11) days of prision correccional as
minimum, to seven (7) years and four (4) months of prision mayor as
maximum.

Subsequently, the CA modified the sentence to four (4) years, nine (9)
months and eleven (11) days of prision correccional, as minimum, to six
(6) years, eight (8) months and one (1) day of prision mayor, as
maximum.

Section 1 of the Indeterminate Sentence Law (IS

32
Law) provides:ChanRoblesVirtualawlibrary

Section 1. Hereafter, in imposing a prison sentence for an offense

punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.
There are, however, instances when the penalties provided for in a special
law adopt the nomenclature of the penalties under the RPC. In such cases,
the ascertainment of the indeterminate sentence will be based on the rules
applied for those crimes punishable under the RPC.33chanrobleslaw

In Sanchez v. People, et al.,34 the Court is emphatic

that:ChanRoblesVirtualawlibrary

[T]he penalty for Other Acts of Child Abuse is prision mayor in its minimum
period. This penalty is derived from, and defined in, the [RPC]. Although
R.A. No. 7610 is a special law, the rules in the [RPC] for graduating
penalties by degrees or determining the proper period should be applied.
Thus, where the special law adopted penalties from the [RPC], the [IS
Law] will apply just as it would in felonies. In People v. Simon, the Court
applied the first clause of Section 1 of the [IS Law] to cases of illegal
drugs. In Cadua v. Court of Appeals, the Court applied the same principle
to cases involving illegal possession of firearms. In those instances, the
offenses were also penalized under special laws. Finally, in Dulla v. Court
of Appeals, a case involving sexual abuse of a child as penalized under
Section 5(b), Article III of R.A. No. 7610, the Court likewise applied the
same first clause of the [IS Law]. x x x.35 (Citations omitted)
In the petitioner's case, the maximum imposable penalty is prision
mayor in its minimum period. The minimum period is fuither subdivided
into three, to wit: (a) six (6) years and one (1) day to six (6) years and
eight (8) months, as minimum; (b) six (6) years, eight (8) months and one
(1) day to seven (7) years and four (4) months, as medium; and (c) seven
(7) years, four (4) months and one (1) day to eight (8) years, as
maximum.36 As there were no established attendant mitigating or
aggravating circumstances, the CA properly imposed the penalty of six (6)
years, eight (8) months and one (1) day as the maximum of the
indeterminate sentence.

As to the minimum of the indeterminate sentence, Section the IS Law

provides that it shall be within the range of the per next lower to that
prescribed for the offense. The penalty next to prision mayor in its
minimum period is prision correccional maximum period. The CA imposed
four (4) years, nine (9) months eleven (11) days of prision correccional,
which falls within the maximum range thereof. The CA imposed the
minimum indeterminate penalty w the allowable range, and the Court now
finds no compelling reaso modify the same.

CONCLUSION.

Based on the summary of the testimonies of the two prosecution

witnesses, the crimes charged have not been proven BEYOND
REASONABLE DOUBT. Thus, the accused Imelda Merida is entitled
to an ACQUITTAL, in the interest of speedy and fair justice.

PRAYER.

WHEREFORE, in the interest of justice, it is respectfully prayed that

this Demurrer to Evidence Without Leave of Court / Memorandum be
ADMITTED and that the instant case against the herein accused
Imelda A. Merida be DISMISSED for failure of the prosecution to
prove her guilt beyond reasonable doubt.

Quezon City , December 10, 2018

ROSALINDA A. MONTENEGRO
Counsel de Officio for the Accused Merida
Unit 200 ACRE Bldg.
 No. 137 Malakas st., Brgy. Central, Quezon City
Roll of Attorney's No. 68465
PTR No. 5609932; Issued: 1/18/18; Quezon City
IBP OR No. AR 001824 / 1/19/18 -Quezon City
MCLE Compliance No. VI-0005347

Cc:

OFFICE OF THE CITY PROSECUTOR

Hall of Justice
Quezon City Hall,