Appellants BRief - Merida
Appellants BRief - Merida
Appellants BRief - Merida
COURT OF APPEALS
MANILA
APPELLANT’S BRIEF
-VERSUS-
IMELDA MERIDA
Accused/ Appellant,
x--------------------------------x
APPELLANTS BRIEF
I. PREFATORY STATEMENT
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.
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.
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.
CONTRARY TO LAW
V. PROSECUTION EVIDENCE.
A. WITNESSES.
B. PROSECUTION EXHIBITS.
That after the last witness was presented, the prosecution made its
forma offer of evidence as follows:
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.
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.
[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.
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.
[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.
CONCLUSION.
PRAYER.
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: