Application for Probation - Isidro Sinlao (Autorecovered)

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  REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT FIRST JUDICIAL REGION BRANCH 68 LINGAYEN, PANGASINAN PEOPLE OF THE PHILIPPINES Plaintiff, -versus- CRIMINAL CASE NO. L-7509 ISIDRO SINLAO y Valenzuela Accused. x-----------------------------------------x MOTION FOR RECONSIDERATION Respondents, through undersigned counsel and unto this Honorable Office, respectfully move for the reconsideration of the Resolution dated 20 March 2013, and which was received on 1 April 2013 (copy of which is attached as ANNEX “A”) and in support thereof, respectfully states: 1.   In the Resolution dated 20 March 2013, the Honorable Office of the City Prosecutor of Muntinlupa City ruled: “ WHEREFORE, In view of the foregoing, there is sufficient ground to believe that probable cause exists against Respondents for committing seven (7) counts of adultery. It is thus recommended that Informations for seven (7) counts of adultery under Article 333 of the RPC be filed against Respondents with a recommended bail of P10,000 for each count.”  2.   It is respondents’ humble position that the Honorable Office committed serious error in rendering the above-cited resolution, and the ground in support of this position, shall be discussed in the course of this Motion for Reconsideration. GROUND FOR RECONSIDERATION  The Honorable Office committed serious error in finding that probable cause exists against the Respondents for committing seven (7) counts of adultery. DISCUSSION The Honorable Office committed serious error in finding that probable cause exists against the Respondents for committing seven (7) counts of adultery.   The Complainant, through the pieces of evidence he submitted, failed to prove that the Respondents’ committed the crime of adulter y. It is axiomatic that in the said crime, sexual intercourse is an essential element for its consummation. This, the complainant has failed to prove. A careful scrutiny and perusal of the assailed Resolution will show that the Honorable Office arrived at its conclusion based on the photographs submitted as evidence by the complainant, the printed airline tickets and the testimony of his brother Baw Ang. Respondents’ submit that these pieces of evidence are clearly insufficient to prove probable cause. In Cruz vs. People 1 , the Supreme Court ruled that; “It is settled that the conduct of a preliminary investigation, which is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial,  is, like court proceedings, subject to the requirements of both substantive and procedural due process . This is because, a preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-  judicial officer.” (Emphasis supplied) Thus, it is clearly stated that in a preliminary investigation, the finding of probable cause must comply with the requirements of the law, both substantive and procedural. The photographs submitted by the complainant do not comply with the requirements of the law. They are not sufficient to engender a well-founded belief that the Respondents had sexual intercourse. As stated in Respondent Machete’s Counter -Affidavit (attached hereto as “Annex A”), he admitted that he has been a homosexual and that both Respondents have been childhood friends. Furthermore, Respondent Machete even adduced evidence in support of his homosexuality, a photograph of him and his partner. Even assuming arguendo that Respondent Machete is not a homosexual, the photographs still cannot be considered as sufficient to indicate that the Respondents engaged in sexual intercourse. In the case of US vs. Rosal 2 , the Supreme Court stated that, “In order to justify a conviction upon circumstantial evidence, the combination of circumstances must be such as to leave no reasonable doubt in the mind as to the criminal responsibility of the accused .”(Emphasis supplied). At the present case, the photographs merely showed that both Respondents were seen kissing and together for many instances. Will that be necessary to show that both had sexual intercourse? It is not. As previously stated, Respondent Machete and Ang have been childhood friends and it is of no surprise that a jealous husband would infer that they are committing sexual intercourse. It is of common knowledge that we live in a society less conservative than that of the past where men and women were separated from each other in social events in order to avoid any suspicion of mischief. Thus, the inescapable conclusion is that the photographs are useless, insubstantial and worthless in determining whether the Respondents had sexual intercourse. The assailed Resolution also relied on the fact that the complainant saw airline tickets for Hong Kong issued to the Respondents and also that the complainant’s brother saw the Respondents in Marco Polo Hotel. Again, this is insufficient to prove anything 1  G.R. No. 110436. June 27, 1994. 2  G.R. No. 4557. November 24, 1908.  that will lead to the conclusion that the Respondents have committed adultery. The fact that the Respondents have been close friends will no longer be discussed at this fact has already been mentioned. In the attached Counter-Affidavit of Respondent Machete, he previously stated that he and Respondent Ang have been business partners engaged in the manufacture and distribution of “Rough Rider Jeans.” As business partners, it i s only natural for them to go on business trips. As a matter of fact, the reason why Respondents went to Hong Kong was because of the Rough Rider Jeans Convention as evidenced by the letter of invitation (attached as “Annex B” hereto). Furthermore, the Res pondents did not have the same room in the said hotel as evidenced by the hotel receipt (attached as “Annex C” hereto). Thus, the testimony of Baw Ang, which is merely circumstantial and not corroborated by other evidemce, does not deserve credence and should have been disregarded by the Honorable Office. Thus, based on the foregoing, the inescapable conclusion is that the Honorable Office of the City Prosecutor failed in finding probable cause against the Respondents. PRAYER WHEREFORE, premises considered, it is respectfully prayed for that the DECISION dated 20 March 2013 which was received on 27 August 2019 be RECONSIDERED. Mangatarem, Pangasinan, Philippines. Lingayen, Pangasinan, Philippines. 6 September   2019.  _____________________________ ATTY. MICHAEL GOTOS DELA VEGA (Counsel for Accused-Applicant) Roll of Attorney No. 54447 O.R. 06541; 10 January 2019; I.B.P. Pasig City; O.R. NO. 0724; 01/04/2019; Pangasinan Chapter; IBP P.T.R. O.R. No. 4749248; 01/10/2019; Mangatarem, Pangasinan. T.I.N. 253-955-126-000; 08-23-2007; and M.C.L.E. Compliance Number: VI-0024977; 12 April 2019; Pasig City, Philippines.  Date: 6 September 2019 To: THE BRANCH CLERK OF COURT RTC - Branch 68 Lingayen, Pangasinan, Philippines Greetings: Kindly include in the calendar of the Honorable Court for hearing of cases the foregoing MOTION FOR RECONSIDERATION this ______________ at 8:30 o’clock in the morning, at which date and time the undersigned will submit the same for the consideration and resolution of the Honorable Court. Thank you!  _____________________________ ATTY. MICHAEL GOTOS DELA VEGA (Counsel for Accused) Copy furnished: Office of the Provincial Prosecutor Hall of Justice Lingayen, Pangasinan Registry Receipt No. Issued on: Issued at: EXPLANATION Service and Filing were done by registered mail with return card due to distance and lack of available messengerial personnel, such that personal service cannot be made.  _____________________________ ATTY. MICHAEL GOTOS DELA VEGA (Counsel for Accused-Movant)
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