Republic of the Philippines

National Capital Judicial Region

Regional Trial Court
Pasig City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
- versus -

ROMULO TAKAD,
Accused.
x ----------------------------------x

DEFENDANT`S MEMORANDUM

Accused ROMULO TAKAD, by counsel, respectfully submits this Memorandum:

THE CASE

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 AntiCarnapping Act of 1972.

THE FACTS

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.

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.
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.
On 20 November 2007, BDC gave the tricycle to Carlos Parlade (Parlade), the new
assignee. 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.

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.

THE ISSUES

Given the foregoing facts and circumstances, the following issues are presented for
discussion:

I
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.
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 consent, or by
means of violence against or intimidation of persons, or by using force upon things."
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.

Carnapping is essentially the robbery or theft of a motorized vehicle, the concept of

unlawful taking in theft, robbery and carnapping being the same.
In the present case, all the elements of the crime of carnapping are not present.
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.

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

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 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.
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. 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
Registration and Official Receipt.
 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.
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.

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 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 statement, 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”

Q: What is your weight?

A: 120 pounds.
ATTY. CRUZ: That would be all your honor.
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.
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.

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.

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.
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 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.
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.”
In this case, the police officers did not serve 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.
Undoubtedly, 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.
Therefore, the warrantless arrest made by the police officers to the accused is invalid.
Based from the foregoing, the prosecution emphatically failed in establishing that the
accused committed the crime of carnapping beyond reasonable doubt.

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.
Pasig City, October 11, 2019.
 ATTY. PAULO A. CRUZ
Counsel for the Accused
No. 69 Camella Homes, Pasig
Atty. Roll No. 1234567890
IBP 098765432 10-10-19
PTR 872523214 01-02-19
MCLE Compliance III-296
Email address: Paulo.cruz@gmail.com

Copy furnished:

PROSEC. ISIDRO T. DE LEON

Hall of Justice,
Pasig City Hall,
Pasig City