Omnibus Motion for Criminal Case Nos. 17-166

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

2

MOTION FOR RECONSIDERATION 1.

On 13 March 2018, the undersigned counsel received a copy of the Order of the Honorable Court dated 24 January 2018 (“Order”), granting the Motion to Admit Amended Information dated 20 October 2017. The Information dated 14 February 2017, filed on 20 February 2017, is thereby deemed superseded and the arraignment of herein accused was set on 16 March 2018 at 8:30 in the morning.

2.

The dispositive portion of the assailed Order states that: WHEREFORE, premises considered, the Court hereby resolves and takes the following actions, to wit: a. Xxx b. the Motion to Admit Amended Information filed by the prosecution is hereby GRANTED, and the attached Amended Information ADMITTED. c. the Reservation to File an Omnibus Motion to Recall Arrest Warrant, Determine Probable Cause, Quash Information, Order Reinvestigation and Suspend Further Proceedings is hereby DENIED in view of OCA Circular No. 101-2017 or the Revised Guidelines for Continuous Trial of Criminal Cases; d. xxx Set the arraignment of the accused Leila M. De Lima on March 16, 2018 at 8:30 o’clock in the morning.

SO ORDERED. Muntinlupa City, January 24, 2018.

3.

The Honorable Court only reasoned that the prosecution may amend the information as a matter of right, considering that:

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

3

3.1. “… the proposed Amended Information contains mere formal amendments to the Original Information, as it merely reduced the verbosity of the former, and streamlined the latter”; 3.2. The proposed amendments results in “no change of theory of the charge against [Accused De Lima]”; 3.3.

Acccused De Lima has not yet entered her plea; and

3.4. It is “clear that the charge against both accused is of conspiracy to commit illegal trading.”

4.

Herein Accused De Lima respectfully files this Motion for Reconsideration as the Honorable Court committed reversible error in granting the Motion to Admit Amended Information, admitting the Amended Information, denying her Reservation to File an Omnibus Motion to Recall Arrest Warrant, Determine Probable Cause, Quash Information, Order Reinvestigation and Suspend Further Proceedings, and setting the arraignment of herein accused on 16 March 2018.

4.1. With due respect, the Honorable Court gravely erred in granting the Motion to Admit and admitting the Amended Information: 4.1.1. On the grounds that the change is merely a formal amendment that may be done as a matter of right because it was done before the Accused was arraigned. In so holding, the Honorable Court gravely erred in failing to recognize:

4.1.1.1. Even if we assume arguendo that the original Information may be amended, the significant alterations in the crime charged in this case makes the change a substitution rather than a mere amendment (formal or otherwise), based on the admissions that the prosecution made in their own submissions; 4.1.1.2. The prejudice that Accused De Lima would suffer from allowing the substitution, which, under the Rules, makes it improper for the Honorable Court to allow the same;

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

4

4.1.1.3. That, even if substitution may be allowed, it is error to allow it without prior leave of court and without ordering the conduct of another preliminary investigation; and 4.1.2. Furthermore, the Honorable Court failed to consider, discuss and rule upon the other arguments raised

by Accused De Lima in her Opposition, Rejoinder and Supplemental Rejoinder (both of which it admitted in its Order dated 24 January 2018), namely: 4.1.2.1. The Information may not be amended because conspiracy as a crime in itself may only be filed if the alleged crime was yet to be committed; 4.1.2.2. The “Amended� Information fails to allege facts constitutive of the new offense charged in violation of applicable rules and jurisprudence on sufficiency of information and proper statement of the cause of accusation; 4.1.2.3. The additional grounds raised by Accused De Lima in her Opposition that are anchored on practicability and the demands of orderly administration of justice; and 4.1.2.4. Even if we assume arguendo that the proposed changes only amount to an amendment, nonetheless, a void Information cannot be amended.

4.2. With due respect, the Honorable Court gravely erred in denying her Reservation to File an Omnibus Motion to Recall Arrest Warrant, Determine Probable Cause, Quash Information, Order Reinvestigation and Suspend Further Proceedings: 4.2.1. The Honorable Court, in so ruling, merely recited the list of Prohibited Motions under the Revised Guidelines for Continuous Trial of Criminal Cases; 4.2.2. As to the reservation to file a Motion to Recall Warrant of Arrest, the same is not even listed among the

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

5

prohibited pleadings. In fact, the rules explicitly list “Motion to quash warrant of arrest” under subsection (c), its non-exhaustive list of “Meritorious Motions”, not (b), its exhaustive list of “Prohibited Motions.” Hence, the denial on that grounds is clearly without basis or support; 4.2.3. As to the reservation to file Motions to Quash Information, Order Reinvestigation and Suspend Further Proceedings, the rules are clear that the prohibition against the same are not absolute, and the denial would depend on whether or not certain conditions are satisfied (e.g., whether the grounds therefor are among those allowed under the Rules Court). Therefore, any ruling that denies such a reservation would be premature and baseless, until and unless the Accused files a Motion based on prohibited grounds.

I.

THE HONORABLE COURT ERRED IN GRANTING THE MOTION TO ADMIT AMENDED INFORMATION

A. This Is Not A Mere Amendment, But A Substitution Of Information 5.

The original Information filed on 17 February 2017 ostensibly charges the accused of having committed the crime of trading illegal drugs, which is penalized under Section 5 and defined under Section 3 (jj) of Republic Act (RA) No. 9165, otherwise known as the “Comprehensive Drugs Act of 2002.”7 5.1. The text of the original Information avers that “accused Leila M. De Lima conspiring and confederating with accused Jose Adrian Dera … did then and there commit illegal drug trading.”

7

The present argument and amplification about the original Information charging the crime of illegal drug trading is not an abandonment or a turn-around of accused’s consistent position that the Information is actually null and void, and, assuming that it is valid, at best, it just charges extortion, a bailable offense. The present argument that the original Information ostensibly charges the offense of illegal drug trading is resorted to only for facility of discussion of issues in this pleading, and to illustrate the stark transformation of the charges, where the very wording of the original Information, the finding in the DOJ Joint Resolution, and even the public pronouncements of DOJ senior officials all claim that the accused are being charged with illegal drug trading (under Section 5 of RA 9165), and not conspiracy to trade illegal drugs (under Section 6 [b] of the same law).

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

6

5.2. The supposed finding in the DOJ Joint Resolution dated 14 February 2017 also points to the crime of illegal drug trading as the offense allegedly committed by accused De Lima and Dera.8 5.3. The order of arrest and the arrest warrant issued by the Honorable Court are obviously based on a reading of the Information that the crime charged against the accused is one of alleged illegal drug trading.

5.4. All the major submissions of the parties and the relevant orders of the Honorable Court naturally presume that the offense charged against accused is illegal drug trading.

6.

The “Amended” Information, which is appended to the Motion to Admit, however, charges the accused with a different offense, which is “conspiracy to trade illegal drugs”, an act penalized under Section 26 (b) of RA 9165.

6.1. The preamble or introductory paragraph of the “Amended” Information expressly indicates the change of the charge to violation of Section 26 (b).

6.2. The basic inculpatory allegation now is that “Leila M. De Lima conspiring and confederating with accused Jose Adrian Dera, did then and there decide and agree to commit illegal drug trading.”

7.

In other words, while the original Information ostensibly alleges that the accused engaged in the past crime of trading drugs, the “amended” Information now accuses her of conspiring (translated into “deciding and agreeing”) to trade drugs in the future. There is a whole 8

The discussion on the alleged commission of illegal drug trading of the two (2) accused can be found in pages 37 through 44 of the DOJ Joint Resolution. The third paragraph of page 39 is quite explicit on the issue of drug trading, thus:

“These testimonies point to the fact that orders for drugs were transacted inside the NBP while deliveries and payments were done outside. These transactions were done with the use of electronic devices. This is typical of drug trading as distinguished from illegal possession or sale of drugs.”

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

7

universe that separates the two (2) crimes, i.e., the crime of “conspiracy to trade drugs” is clearly distinct and different from the offense of “drug trading.”

7.1. The evidence sufficient to justify a conviction for “conspiracy to trade drugs” cannot be enough to support a guilty verdict for “drug trading”. As such, it is necessary to allege in the Information, and thereafter prove, that each of the accused has agreed to participate to sell illegal drugs to prospective buyers.

7.2. The two (2) offenses are not the same. “Conspiracy to trade drugs” is separately criminalized under Section 26 of RA 9165, while “drug trading” is penalized under Section 5 of the same law. The operative act in “conspiracy to trade drugs” is the agreement and decision to commit the crime; while the gravamen in “drug trading” is the trafficking of dangerous drugs, precursors or essential chemicals with the use of electronic devices, or with the facilitation of a broker.

7.3. The first crime does not obviously include, nor is it included in the second offense. Also, “conspiracy to trade drugs” is neither an attempted nor frustrated version of “drug trading”. Clearly therefore, the two (2) offenses are distinct crimes, which bear no significant similarities, except as to the common penalties that are imposable to both acts.

8.

The change is not one of mere amendment. The alteration goes into the very nature and cause of accusation against the accused.

The very offense alleged to have been committed by the accused has been replaced and substituted by a new one.

9.

In their Reply, the Prosecution admitted that the following amounts to a substitution, and not a mere amendment, to wit: a. If the changes amount to a change in the offense being charged; b. If the changes alter the prosecution’s theory of the case, so as to cause surprise to the accused and affect the form of defense she has or will assume; or

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

8

c. The changes adversely affect a substantial right of the accused.12

10. In disputing Accused De Lima’s grounds for opposing their Motion to Admit Amended Information, the Prosecution limits itself to claiming that the changes they are attempting to introduce merely amounts to a formal amendment, alleging that: a.

They merely changed the title of the offense;

b.

They are not changing their theory; and

c.

Such changes will neither cause surprise to her, nor will it affect the form of defense that may be available to her, and ultimately will not adversely violate her substantial rights.13

11. However, such bald-faced claim of merely attempting to introduce “formal amendments” is glaringly belied by the Prosecution’s own Reply, when they clearly admitted that: 11.1. They are now attempting to charge the accused, not with illegal trading, but mere conspiracy to commit illegal trading.14 11.2. That such a change, according to Prosecution’s reasoning, will enable them to obtain the conviction of the accused using just “a single witness (sic) uncorroborated testimony”, i.e., without the need of presenting proof of the corpus delicti of the crime of illegal drug trading (which is the illegal drug itself, among others), but merely by proof of the “mere agreement to commit the said acts and not the actual execution thereof” (pars. 21 to 22, citing Rimorin v. People15 and People v. Fabro16). 17 12

13 14 15 16 17

Paragraph 4, subparagraphs (b) to (d) of their Reply (to the Opposition to the Motion to Admit Amended Information filed by Accused De Lima), p. 2.

Paragraphs 5 to 12 of the Reply, pp. 2 to 4.

Paragraphs 13 to 15 of the Reply, p. 4.

G.R. No. 146481, 30 April 2003.

G.R. No. 114261, 10 February 2000.

In any case, accused maintains the arguments set forth in her Opposition to the effect that the corpus delicti of the crime of conspiracy to commit illegal drug trading, as “[i]n all prosecutions for the violations of the Comprehensive Drugs Act of 2002, existence of the

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

12.

9

In other words, the Prosecution admitted that:

12.1. It is attempting to charge the accused with a totally different offense, one that has a totally different corpus delicti, i.e., mere agreement to commit illegal drug trading (instead of illegal drug trading), without the need to prove the specific transactions that constitute trading in illegal drugs, or the use of electronic device to commit such act of trading, or even to allege and prove the nature and the very existence of the prohibited drugs illegal traded; 12.2. Such new offense, according to their new theory, now changes its burden of proof because it can now obtain conviction based on the mere say-so of a sole witness, without being required to prove the existence of the prohibited drugs allegedly traded, etc.; 12.3. Such change, according to the Prosecution’s theory, considerably lowers the prosecution’s burden of proof, considering that, under the principles governing criminal law, it is “a precept that physical evidence is of the highest order and speaks more eloquently than all witnesses put together.”18 12.4. Such a change in theory and lowered burden of proof of the prosecution prejudices the defenses available to the accused because it attempts to erode or strip away her first line of defense, i.e., the equally established precept that should “the prosecution fail to discharge its burden, it follows, as a matter of course, that an accused must be acquitted.” 19 After all, the strongest defense of an accused who is protected by the constitutionally enshrined presumption of innocence is a weak prosecution, as explained by the Supreme Court:

18

19

prohibited drug has to be proved” (People v. Watanama, 692 Phil. 102 [2012]). The portion in People v. Fabro quoted by the Prosecution in par. 17 of its Reply is mere obiter dictum, as affirmed by the Office of the Solicitor General during the Oral Arguments before the Supreme Court En Banc in the case of De Lima v. Guerrero G.R. No. 229781, since the Supreme Court in Fabro does not discuss as an issue the elements of Section 26(b) (amending Section 21(b)).

Hence, to replead and present it as doctrine is clearly misleading.

People v. Patentes, G.R. No. 190178, February 12, 2014 citing People v. Bardaje, 187 Phil. 735, 744 (1980).

Macayan v. People, March 18, 2015, G.R. No. 175842.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

10

As explained in Basilio v. People of the Philippines [591 Phil. 508 (2008) [Per J. Velasco, Jr., Second Division].]: We ruled in People v. Ganguso: An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. xxx Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the weakness of the defense, but on the strength of the prosecution. The burden is on the prosecution to prove guilt beyond reasonable doubt, not on the accused to prove his innocence [Id. at 521–522.].

(Citations omitted)

13. In the case of Teehankee v. Madayag,20 the Supreme Court made distinctions between amendment and substitution of information under Section 14, Rule 110 of the 2000 Rules of Criminal Procedure, in this manner: “The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3.

20

Where the amendment is only as to form, there is no

G.R. No. 103102, March 6, 1992, 207 SCRA 134.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

11

need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.21

14. The key in determining whether substitution of information is the proper course of action, and not just an amendment, is to know if there is identity in the offenses charged in the two (2) informations. Teehankee illustrated this, thus: In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter.22

15. In this case, there is no identity in the offenses charged in the original and new information, as admitted by the Prosecution itself, as it charges a crime that has a different corpus delicti from the crime originally charged; it changes the theory of the prosecution and 21 22

Emphasis supplied.

Emphasis and underscoring supplied.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

12

considerably lowers its burden of proof; hence, as a result, it likewise changes the form of defense available to the accused; and, thus, as will be further discussed below, it affects the substantial right of the accused as it makes certain defenses unavailable to her, particularly her first line of defense, i.e., the weakness of the prosecution’s case against her because of its inability to allege, much less present, the illegal drug allegedly traded.

16. In light of the foregoing, it is clear that this is an attempt at substitution, and not mere amendment.

17. The Honorable Court, in ruling otherwise, merely relied on the bare assertions of the Prosecution, without considering and discussing the explicit and implicit admissions of the Prosecution that indicate that the changes they are attempting to make are substantial.

The Honorable Court’s failure to do so, i.e., its silence as to the correctness of the Prosecution’s claim as to the corpus delicti of the new charge, its new theory regarding its lowered burden of proof, etc., only made it more difficult for the Accused to ascertain the nature of the new charges being filed against her and, as will be explained below, substantially prejudices her substantial rights.

B.

Amending The Information Prejudices The Substantial Rights Of The Accused

18. In disputing accused De Lima’s grounds for opposing their Motion to Admit Amended Information, the Prosecution claims that the changes they are attempting to introduce are “merely formal” (par.

3 of the Reply).

19. However, as explained above, such bald-faced claim is glaringly belied by the Prosecution’s own admissions.

20. The test laid down by the Supreme Court, as explained by Justice Oscar M. Herrera, is as follows: The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is, when a defense under the complaint or information as it originally stood, would no longer be available after the amendment is made, … and when any evidence the accused might have

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

13

would be inapplicable to the complaint or information as amended.23

21. In the case at bar, it appears that the Prosecution is attempting to deny the accused the availability of the defense of the admitted absence of any physical evidence of illegal drug trading by attempting to make such defense inapplicable to the information they are substituting for the original.

22. Plainly, what the Prosecution is attempting to slyly accomplish is to unfairly remedy the weakness of its case after the same has been amply and consistently demonstrated by the various submissions of the accused before the court in this case. It is trying to change the rules of the game after having taken a close and leisurely look at the accused’s defense and compared its strengths with its own case. This is the very definition of “prejudice to the accused”, as it violates, in addition to her right to be presumed innocent, the basic rules of fair play, justice and due process.

23. The Prosecution could brazenly claim that it is merely attempting to introduce amendments “in form”, but the reality of what it is doing – and the unfairness of it and the prejudice to the accused – is belied by its own admissions. It cannot simultaneously claim the benefit of two inconsistent things, i.e., it cannot claim a substantially lower burden of proof on one hand, and yet claim that such has no impact on the theory of the case and the corresponding defense of the accused on the other.

24. In the words of the Supreme Court, “[i]f, as in this case, the provincial fiscal can constantly shift his attack, the accused would become the victim of official vacillation and procrastination.”24 If the court allows the substitution despite the prejudice to the rights of the accused, it will not only be failing in its bounden duty to prevent such an abuse from being perpetrated, it will also be making itself complicit therein.

25. If anything, the Prosecution merely proves what the accused has been stating in her defense all along: that there is utterly no basis for the charges filed against her – not then, when the Prosecution filed the original Information, and certainly and even admittedly not now.

23 24

Emphasis supplied; Herrera, O.M. Remedial Law IV (2007), pp. 162 – 163.

Conde v. Judge of the CFI of Tayabas, G.R. No. L-21236, October 1, 1923.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

14

26. As stated above, the Honorable Court, in failing to address these admissions and claims made by the Prosecution, i.e., its silence as to the correctness of the Prosecution’s claim as to the corpus delicti of the new charge, its new theory regarding its lowered burden of proof, etc., has failed to settle the issues and has, thus, left the Accused without sufficient notice as to the true nature of the new charges being filed against her and has, thus, substantially prejudiced her substantial rights.

C. That, Even If Substitution May Be Allowed, It Is Error To Allow It Without Prior Leave Of Court And Without Ordering The Conduct Of Another Preliminary Investigation.

27. As mentioned above, in the case of Teehankee v. Madayag,25 the Supreme Court stated, in part, “[a]mendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed,” and “[w]here the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information.26 28. As extensively discussed above, the changes that the Prosecution is attempting to make are not merely “amendments as to form”.

29. As shown above, even based solely on the admissions made by the Prosecution – e.g., that the corpus delicti of the two offenses are so different that it claims that the change from one to the other considerably lowers its burden of proof by enabling it to obtain conviction solely on the testimony of a single witness, without need of alleging, presenting and proving the illegal nature of the alleged drugs traded – and even moreso when the changes to the defenses available of the accused are considered, it can readily be seen that the changes, whether necessitating substitution or not, are not strictly “only as to form.”

25 26

G.R. No. 103102, March 6, 1992, 207 SCRA 134.

Emphasis supplied.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

15

30. Following the Supreme Court’s ruling in Teehankee, therefore, the changes must be made with prior leave of court, and “another preliminary investigation is entailed.”

31. The need for a new preliminary investigation is made even more critical considering the Prosecution’s claim – which the Accused disputes – that it can pontentially obtain conviction solely on the basis of the uncorroborated testimony of a single witness, depending on such witness’s credibility. It may be recalled by the Court that none of the witnesses were actually presented in person during the preliminary investigation.

D. The Prosecution’s Own Inculpatory Allegations Indicate That The Crime Of Illegal Drug Trading Has Already Been Consummated 32. In addition to this, and even assuming that this is a mere amendment, the Information may not be amended because it violates the elementary principle in criminal law that conspiracy as a crime in itself (being a preparatory act) if already committed, is absorbed and treated as conspiracy as a manner of incurring liability for the consummated crime.27 33. Applying the said legal principle to the crime of conspiracy to commit illegal drug trading, conspiracy under Section 26 (b) is therefore absorbed by illegal drug sale under Section 5 if it was already committed. An accused may therefore be charged not based on the preparatory act but for the consummated act.

34. As a consequence, it shall then be necessary to prove the elements of illegal drug sale since the allegation of the Prosecutors point to the conclusion that the accused actually committed the crime agreed upon.

35. The DOJ Panel of Prosecutors has consistently raised that illegal drug trading has already been committed, thus, they may not backtrack and claim that the charge should be for conspiracy. The alleged crime has already been absorbed and, pursuant to the 27

The Revised Penal Code – Criminal Law Book One, Luis B. Reyes, 2006, 123-124; Akin to conspiracy to commit treason, coup d’etat, rebellion, or sedition, there can be no separate offense of conspiracy and the consummated felony.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

16

prosecution’s own theory, the proper charge ought to be illegal drug sale under Section 5.28 36. The amendment of the Information is clearly improper because the preparatory stage has already lapsed and the crime allegedly has already been committed as the Prosecutors’ themselves claimed.

E.

The “Amended” Information Fails To Allege Facts Constitutive Of The New Offense Charged In Violation Of Applicable Rules And Jurisprudence On Sufficiency Of Information And Proper Statement Of The Cause Of Accusation.

37. The Honorable Court went through the trouble of laying the Original Information and Proposed Amended Information sideby-side, yet failed to consider, discuss and rule upon the differences that were raised by Accused De Lima in her Opposition, which leaves her in the dark as to the nature and cause of the accusation against her, thus further prejudicing her rights.

38. The Bill of Rights under Section 14 assures that the accused shall enjoy the right to be informed of the nature of cause of accusation against him. Following People v. Mencias, 29 this constitutional guarantee means that: The defendant is entitled to know the nature and cause of the accusation against him so he can adequately prepare for his defense. Obviously, he cannot do this if he has to guess at the charge that has been leveled against him because of the ambiguous language of the complaint or information.

39. In his dissenting opinion in De Lima v. Judge Guerrero, 30 Justice Caguioa expounded on this right in this manner:

28

While still maintaining that the proper charge as provided under the original Information ought to be bribery.

29

46 SCRA 88.

30

G.R. No. 229781, October 10, 2017.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

17

By constitutional mandate, a person who stands charged with a criminal offense has the right to be informed of the nature and cause of the accusation against him. As a necessary adjunct of the right to be presumed innocent and to due process, the right to be informed was enshrined to aid the accused in the intelligent and effective preparation of his defense. In the implementation of such right, trial courts are authorized under the Rules of Court to dismiss an Information upon motion of the accused, should it be determined that, inter alia, such Information is defective for being in contravention of the said right.

40. In this case, the right of accused De Lima to be informed of the nature and cause of the accusation against her was definitely violated when she was originally charged, arrested and detained for consummated drug trading, given that the new Information now charges her for a different crime, which is conspiracy to commit illegal drug trading.

41. This argument becomes even more compelling if we are to consider the procedural and jurisprudential requirements of a sufficient Information.

42.

Sections 6, 8 and 9 of the Rules of Court provide that: Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a) Section 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

18

constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (8a)

Section 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (9a)

43. In People v. Valdez,31 the Supreme Court distilled existing doctrines in determining the sufficiency of Information, thus: It cannot be otherwise, for, indeed, the real nature of the criminal charge is determined not from the caption or preamble of the information, or from the specification of the provision of law alleged to have been violated, which are mere conclusions of law, but by the actual recital of the facts in the complaint or information. In People v. Dimaano, the Court elaborated:

For complaint or information to be sufficient, it must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. What is controlling is not the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts 31

People v. Valdez, G.R. No. 175602, 18 January 2012.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

therein recited. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense.

The averments of the informations to the effect that the two accused “with intent to kill, qualified with treachery, evident premeditation and abuse of superior strength did xxx assault, attack and employ personal violence upon” the victims “by then and there shooting [them] with a gun, hitting [them]” on various parts of their bodies “which [were] the direct and immediate cause of [their] death[s]” did not sufficiently set forth the facts and circumstances describing how treachery attended each of the killings. It should not be difficult to see that merely averring the killing of a person by shooting him with a gun, without more, did not show how the execution of the crime was directly and specially ensured without risk to the accused from the defense that the victim might make. Indeed, the use of the gun as an instrument to kill was not per se treachery, for there are other instruments that could serve the same lethal purpose. Nor did the use of the term treachery constitute a sufficient averment, for that term, standing alone, was nothing but a conclusion of law, not an averment of a fact.

In short, the particular acts and circumstances constituting treachery as an attendant circumstance in murder were missing from the informations.

19

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

To discharge its burden of informing him of the charge, the State must specify in the information the details of the crime and any circumstance that aggravates his liability for the crime. The requirement of sufficient factual averments is meant to inform the accused of the nature and cause of the charge against him in order to enable him to prepare his defense. It emanates from the presumption of innocence in his favor, pursuant to which he is always presumed to have no independent knowledge of the details of the crime he is being charged with. To have the facts stated in the body of the information determine the crime of which he stands charged and for which he must be tried thoroughly accords with common sense and with the requirements of plain justice, for, as the Court fittingly said in United States v. Lim San:

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. xxx. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, “Did you perform the acts alleged in the manner alleged?” not “Did you commit a crime named murder.” If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. It is the province of the court alone to say

20

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

21

what the crime is or what it is named. xxx. (emphasis supplied)

44. Following the foregoing synthesis, it can be asked then: Is the “amended” information for conspiracy to trade drugs sufficient as to accurately and clearly allege all the elements of the crime? In other words, does it contain sufficient factual allegations constitutive of conspiracy to trade drugs?

45.

The answer to both questions are an emphatic “No.”

46. Not only does the “amended” Information suffer from a dire lack of facts constitutive of the crime charged (as will be discussed at length later) and miserably fails in alleging the corpus delicti of the crime of conspiracy to trade drugs, it also presents a fundamental problem.

The “amended” Information shows an intrinsic and irremediable inconsistency within its very text, with the accusatory portion in the beginning not being supported by the rest of the body.

It is already problematic enough that a conclusion of law was reached by treating “decided and agreed” to be the purported factual equivalent of “conspiracy”. However, an even more pathetic situation is revealed when the manner of commission of the crime, as alleged, undoubtedly describes a different crime of a supposed co-conspirator, who purportedly influenced another person of committing another (separate) crime to another person.

Taking a look at the comparative table below (showing the variances in the two (2) Informations) highlight this mess, thus: PART

Authorship/

ORIGINAL INFORMATION

The undersigned Prosecutors, constituted Prosecutorial as a Panel pursuant to mandate the Department Order 706 dated October 14, 2016

AMENDED INFORMATION

DIFFERENCES

The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders No. 414 dated 16 June 2017 and 455 dated 03 July 2017

The panel of prosecutors who filed the Amended Information on 25 October 2017 is different from the panel who filed

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

22

the original Information on 17 February 2017.32

Two (2) new DOs were issued to reconstitute/reorganize the panel in June and July after the termination of the preliminary investigation on 21 December 2016, after the issuance of the Joint Resolution on 14 February 2017, and after the filing of the original Information on 17 February 2017.

Preamble/ Accusatory portion

Main inculpatory allegation

32

accuse LEILA M. DE LIMA and JOSE ADRIAN DERA a.k.a. “Jad De Vera” and “Jad” for violation of Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, committed as follows

hereby accuse LEILA M. DE LIMA and JOSE ADRIAN DERA a.k.a.

“Jad De Vera” and “Jad” for violation of Section 26 (b) in relation to Section 5 and Section 3 (jj), of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, committed as follows:

The charge is changed in the Amended Information to “conspiracy to commit illegal drug trading” under Section 26 (b) from the original offense of “illegal drug trading”

That sometime in March 2016 or on dates prior or subsequent thereto, in the City of Muntinlupa, Philippines, and within the jurisdiction of this Honorable Court, accused Leila M. de Lima conspiring and confederating with accused Jose Adrian

That sometime in March 2016 or on dates prior or subsequent thereto, in the City of Muntinlupa, Philippines, and within the jurisdiction of this Honorable Court, accused Leila M. de Lima conspiring and confederating with accused Jose Adrian

The phrase “both of them having moral ascendancy and influence over Wu Tuan Yuan a.k.a. “Peter Co,” an inmate in the New Bilibid prison,” was deleted The words “decide and agree” were inserted

The panel of prosecutors who signed the original Information were: Peter Ong, Alexander Ramos, Leila Llanes, Evangeline ViudezCanobas, and Editha Fernandez; while the panel who signed the Amended Information were: Peter Ong, Leila Llanes, Evangeline Viudez-Canobas, Ramoncito Bienvenido Ocampo Jr., Lea Lavore, Alexander Suarez, Aristotle Reyes, Laurence Joel Taliping, Rudy Rocamora Jr., and Wendell Bendoval.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

23

Dera, both of them having moral ascendancy and influence over Wu Tuan Yuan a.k.a. “Peter Co”, an inmate in the New Bilibid Prison, did then and there commit illegal drug trading, in the following manner:

Dera, did then and there before “commit illegal decide and agree to drug trading” commit illegal drug trading, in the following manner:

Allegation 1

Dera did then and there demand, solicit and extort money and vehicles from Peter Co for the senatorial bid of de Lima in the May 2016 election

Dera did then and there Same demand, solicit and extort money and vehicles from Peter Co for the senatorial bid of de Lima in the May 2016 election

Allegation 2

by reason of which, Peter Co, not being lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs

by reason of which, Same Peter Co, not being lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs

Allegation 3

and thereafter give and deliver to de Lima, through Dera, the proceeds of illegal drug trading amounting to Three Million (P3,000,000.00) Pesos and four vehicles.

and thereafter gave and The amendment just delivered to De Lima, corrected errors in through Dera, the grammar and usage proceeds of illegal drug trading consisting of Three Million (P3,000,000.00) Pesos and four vehicles.

47. findings:

Noticeable from the foregoing table are the following

47.1. As to authorship and assertion of prosecutorial authority, it can be noted that a different panel filed the Amended Information (who was not the one who conducted the preliminary investigation, issued the Joint Resolution, and filed the original Information). Although it may not directly affect the

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

24

authority to file the information, the ever changing composition and mandate of the prosecuting panel illustrates the seeming arbitrariness and tentativeness of the Department of Justice in handling this case.

47.2. As to the change in the accusatory paragraph, this is the biggest blunder committed by the prosecution. By changing the crime charged, they violated a number of constitutional and procedural rights of Sen De Lima, as earlier discussed.

47.3. As to the main inculpatory allegation, the deletion of the phrase depicting the alleged influence and authority of the accused, means an admission on the part of the prosecution that accused De Lima and Dera, not being public officers with authority or office related NBP at the time of alleged commission of the crime, would not have moral ascendancy and influence over Peter Co. Another glaring fact appears on the issue of venue: where did the alleged “conspiracy� [agreement and decision] to trade drugs between the two (2) accused happen? Granting arguendo that it happened, it could not be in Muntinlupa City. There is nothing in the DOJ Joint Resolution and in the affidavits to support this view.

47.4. As to Allegation 1, it cannot be indicative of conspiracy to commit drug trading, or any element of that alleged crime. At best, it can only be extortion, as the averment was that Dera allegedly demanded, solicited and extorted money and vehicles from Peter Co, and that such act, assuming it happened, was without the knowledge, consent or cooperation of accused De Lima.

47.5. As to Allegation 2, it merely showed purportedly how Peter Co allegedly complied with the extortion of Dera, with the former engaging in drug trading. At best, it alleges that Co traded drugs, thus, the crime committed, if ever, is consummated drug trading, and not conspiracy to trade drugs.

Furthermore, it shows that Co was the person who committed the crime and not De Lima or Dera. Also, there was no allegation that such act of alleged drug trading was with the knowledge, consent, or cooperation of accused De Lima and Dera. It is

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

25

therefore not a factual allegation constitutive of the crime of conspiracy to trade drugs, or any element thereof.

47.6. As to Allegation 3, as with the other factual allegations, the same cannot be constitutive of the alleged crime of conspiracy to trade drugs. At best, it purportedly showed that Peter Co allegedly delivered money and vehicles to Dera, allegedly intended for accused De Lima.

48. All in all, there is a conspicuous absence of facts constitutive of the alleged crime of conspiracy to trade drugs. There are no sufficient details to prop up the conclusion of law that the accused “decided and agreed” to trade illegal drugs. Worse, the “amended” Information is fundamentally flawed. The bare and generalized accusation that the two (2) accused were in conspiracy to trade drugs just curiously stopped at the opening part. It was not substantiated elsewhere. Describing the supposed manner of committing the said alleged crime, the averments simply wandered off, with Dera supposedly extorting vehicle and money (a different crime, if ever) from Co, who, on his end, committed supposedly a separate offense on his own (trading drugs). The language and phraseology of the “amended” Information is so confabulated and confused as to be even believable.

49. Another fatal defect in the “amended” Information is the lack of mention of a corpus delicti. The phrase “decided and agreed” cannot be taken as an equivalent or a substitute for the required corpus delicti. As held in People v. Watanama,33 “[i]n all prosecutions for the violations of the Comprehensive Drugs Act of 2002, the existence of the prohibited drug has to be proved.”

50. It is conceded that, as a rule, an Information need only state the ultimate facts constituting the offense, as evidentiary details are more appropriately threshed out during trial. However, as a consequence of the accused’s right to be informed of the nature and cause of the accusation against him, the Information must allege clearly and accurately the elements of the crime charged.34 In People v.

Posada,35 the Supreme Court underscored the importance of alleging 33

692 Phil. 102 (2012)

34

Go v. Bangko Sentral ng Pilpinas, 619 Phil. 306 (2009).

35

684 Phil. 20 (2012).

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

26

and identifying in the Information the corpus delicti and explained that the failure of the prosecution to particularly identify the dangerous drug in the Information was tantamount to a deprivation of the accused’s right to be informed of the nature of the offense being charged.

51.

Thus, there are fundamental contradictions and inconsistencies within the very text of the “amended” Information, coupled with the fact that it does not contain sufficient allegations constitutive of the crime charged, and that it does not aver a corpus delicti. All these constitute a gross deprivation of accused De Lima’s constitutional right to be informed of the nature and cause of accusation against her.

52. The Prosecution claims that the Information is “plainly worded that even a person of ordinary intelligence would understand the allegations stated therein”. It is attempting to argue that the very lack of allegations makes it plain and easy to understand. This is a patent violation of the accused’s right to be informed of the “nature of the accusation against [her] so as to enable [her] to suitably prepare [her] defense” because “[t]he presumption is that the accused has no independent knowledge of the facts that constitute the offense.”36 53. The Honorable Court itself noted a paradox, i.e., that two different charges are allegedly supported by the same factual allegations, with the proposed changes allegedly merely eliminating the verbosity of the original Information. This is not, however, a reflection that the same offense is being charged. As admitted by the Prosecution, the elements and corpus delicti of the two charnges are different. If anything, this highlights how the Accused would find it difficult to understand the cause and nature of the accusation against her, as extensively explained in paragraphs 12 to 25 of the Opposition.

F.

36

Unless The Court Is Ready To Recall The Arrest Warrant, Suspend Proceedings And/Or Order A Reinvestigation, Amending The Information Cannot Simply Be Allowed Without Undoing The Proceedings And Processes Already Had In This Case.

People v. Valdez, G.R. No. 175602, 18 January 2012.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

27

54. Having set forth the relevant constitutional, legal, jurisprudential and procedural reasons to deny the admission of the “amended” Information, accused De Lima likewise wishes to point out additional grounds anchored on practicability and the demands of orderly administration of justice.

55. As earlier discussed, all the major submissions of the parties and relevant orders and processes of this Honorable Court in this case presumed that the crime charged against accused De Lima is illegal drug trading, punishable under Section 5 of RA 9165. This is the crime for which a finding of probable cause was arrived at by the panel of DOJ prosecutors in its Joint Resolution, the same crime alleged in the original Information. It is the same crime that was in the mind of the Honorable Court when it evaluated the evidence on record and issued the arrest order and warrant.

56. Admitting the “amended” Information, which charges a totally different crime, will certainly cause dire consequences to the previous major proceedings and significant processes undertaken by the Honorable Court and the parties. It will derail any progress in the case to the prejudice of the accused. A number of issues would crop up, which will beg immediate consideration: a.

Should not the arrest warrant be recalled as there is a complete change in the nature and cause of accusation against accused De Lima? b.

Should not the Honorable Court order a reinvestigation given that the “amended” Information charges a crime different from the one found in the DOJ Joint Resolution and not supported by any of the affidavits of the complainants and their witnesses? c.

Should not the Honorable Court, in the alternative, make a judicial determination of probable cause based on the new Information and in light of the evidence extant in the records? d.

Should not the Honorable Court, on a proper motion, quash the “amended” Information for being fatally defective and not compliant with procedural and substantial rules?

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

28

e.

Should not the Honorable Court hold further proceedings in abeyance, which will affect the pending incidents and the scheduled hearing/s?

G. A Void Information Cannot Be Amended 57. The Information sought to be amended is void, as clearly shown by the absence of allegations of the essential elements of the crime charged.

58. It is clear that the allegations and the recital of facts in the Information and the Resolution do not provide the corpus delicti of the alleged offense.

The corpus delicti required for the charge of violation of R.A. No. 9165 59. In the prosecution of criminal cases, it is necessary for the Information or Complaint to provide the corpus delicti of the offense that is alleged to have been committed. Hence, in the case of Yadao v.

People of the Philippines,37 the Honorable Supreme Court held that: Basic is the principle in criminal law that the evidence presented must be sufficient to prove the corpus delicti – the body or substance of the crime and, in its primary sense, refers to the fact that a crime has been actually committed. The corpus delicti is a compound fact composed of two things: 1) the existence of a certain act or a result forming the basis of the criminal charge, and 2) the existence of a criminal agency as the cause of this act or result.30 In all criminal Prosecutions, the burden is on the Panel of Prosecutors to prove the body or substance of the crime. xxx

xxx

xxx

60. In relation to the violation of Section 5 of RA 9165, the case of People of the Philippines v. Climaco, 38 citing People of the Philippines v. Roble, 39 stipulates that the corpus delicti in cases 37

G.R. No. 150917, 27 September 2006.

38

G.R. No. 199403, 13 June 2012

39

G.R. No. 192188, 11 April 2011.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

29

involving dangerous drugs is the presentation of the dangerous drug itself, hence: Similarly, it is essential that the transaction or sale be proved to have actually taken place coupled with the presentation in court of evidence of corpus delicti which means the actual commission by someone of the particular crime charged. The corpus delicti in cases involving dangerous drugs is the presentation of the dangerous drug itself.40 61. In the case of People of the Philippines v. Capalad41, the elements for the violation of Section 5 of RA 9165, more specifically the sale of illegal drugs are: (1)

the identities of the buyer and the seller, the object, and the consideration; and

(2)

the delivery of the thing sold and the payment for it.

62. Noting Section 3 (jj), it is also necessary to require the existence of electronic devices that are used for drug trafficking or brokering. No such physical evidence exists.

63. In relation to conspiracy provided under Section 26 (b), Article 8 of the Revised Penal Code is instructive. Article 8 of the Revised Penal Code is instructive. To wit: Article 8. Conspiracy and Proposal to Commit Felony.

Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor.

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.

40

Underscoring supplied.

41

People v. Capalad, G.R. No. 184174, 7 April 2009, citing People v. Naquita, G.R. No. 180511, 28 July 2008.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

30

xxx

xxx

xxx

64. For there to be conspiracy, it is necessary that there be “concurrence of will” or “unity of action and purpose.”42 In relation to the sale of illegal drugs, the conspiracy to sell is highlighted by the concerted conduct that shows the common design to deal with illegal drugs.43 65. The following cases, where the conviction of the accused for violation of Section 5 in relation to Section 26 was affirmed by the Supreme Court, are instructive on the requisite elements of the offense that must be alleged in the Information: a.

A conviction for attempted sale of illegal drugs was affirmed upon showing that the elements for the sale of illegal drugs have been proven albeit the sale not being consummated as a result of the police introducing themselves and arresting the accused.44

b.

Conviction was also affirmed on the basis of an Information that contained material allegations that provided the identities of the buyer and the seller, the object, the consideration, the delivery of the thing sold and the payment for it, as well as the acts showing their conspiracy.45

66. A reading of the foregoing provisions of law and case law would show that the violation of Section 5 in relation to Section 26 (b) under RA 9165, necessitates proof of the identities of the buyer and the seller, the object, and the consideration; the delivery of the thing sold and the payment for it, including the allegation of conspiracy to sell dangerous drugs. In other words, it requires allegation and proof of the corpus delicti of the case.

The Prosecution in this case evidently failed to allege, much less support, the existence of the corpus delicti of the

42

People of the Philippines vs. Pudpud G.R. No. L-26731, 30 June 1971.

43

People vs. Batoon G.R. No. 184599, 24 November 2010.

44

People of the Philippines vs. Laylo G.R. No. 192235, 6 July 2011.

45

People of the Philippines vs. Ventura G.R. No. 184957, 27 October 2009; and People of the Philippines vs. Le and Del Castillo G.R. No. 188976, 29 June 2010.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

offense charged Information

31

in

the

Original

67. The allegations raised against Petitioner by the Prosecution consist solely of the following: 67.1. Information provides that: xxxx Dera did then and there demand, solicit and extort money and vehicles from Peter Co for the senatorial bid of de Lima in the May 2016 election; by reason of which, Peter Co, not being lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there wilfully and unlawfully trade and traffic dangerous drugs and thereafter give and deliver to de Lima, through Dera, the proceeds of illegal drug trading amounting to Three Million (P3,000,000.00) Pesos and four vehicles.

67.2. Hans Anton Tan, in his Sworn Affidavit dated 19 September 2016 46 , alleged that on 25 March 2016, when Co’s niece and her husband were held in custody by the NCRPORAID, co-accused Dera picked-up One Million Pesos (P1,000,000.00) from a casino in Metro Manila and delivered it to the group detaining the couple.47 67.3. Peter Co, on the other hand, alleged in his Sinumpaang Salaysay dated 09 October 2017 that on 25 March 2016, he was compelled to give Two Million (P2,000,000.00) Pesos to accused Dera, out of the Five Million (P5,000,000.00) Pesos demanded for the release of his niece, Sally who, together with her husband and companions, were detained and threatened to be charged for violations of the anti-drugs law. He further alleged that co-accused Dera received One Million (P1,000,000.00) from his friend inside a casino, which he did not specifically identify and the remaining One Million (P1,000,000.00) Pesos was deposited to co-accused Dera’s account. Co likewise alleged that co-accused Dera took his four 46

Attached as Annex “N” of the Complaint-Affidavit of Dante LA Jimenez dated 11 October 2016.

47

Page 21 of the Joint Resolution dated 14 February 2017, Annex “E” of this Petition; TSN dated Sept. 21, 2016, pp 22-1.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

32

vehicles, which he failed to identify with specificity, purportedly to be used in the campaign sortie of de Lima. Finally, he alleged that accused Dera demanded from his niece, Sally, an additional Three Million (P3,000,000.00) Pesos allegedly for the campaign of de Lima, in exchange for their safety, which Sally promptly delivered to co-accused Dera.48 68. In sum, the allegations ascribed to de Lima on the cash and vehicles received by Dera are fundamentally infirm because: First, the Three Million cash (P 3,000,000.00) was allegedly given to Dera and not to de Lima. The Information is bereft of any allegation that the money was actually delivered and received by de Lima; Second, there is also no proof as to the source nor ownership of the money; Third, the vehicles allegedly given to Dera were also not shown to have been delivered and received by de Lima; Fourth, the vehicles allegedly given were not even identified with particularity, which is integral to any penalbased claim; Fifth, as a consequence of the lack of identification, the ownership of the vehicles was not provided as well.

69. Worse, therefore, is the fact that the vehicles and cash that were deemed to constitute the benefit, or consideration gained by de Lima (and her alleged complicity) are also absent, with the Prosecution failing to provide with particularity the vehicles received and any proof of de Lima’s acceptance of the cash allegedly provided by Tan to Dera through Sally.

70. Therefore, a rudimentary examination of the Information and the recital of facts reveal that the corpus delicti for the alleged violation is absent in the case. This is a fact that was already judicially

48

Page 9 of the Joint Resolution dated 14 February 2017, Annex “F” of this Petition; TSN dated Oct. 10, 2016, pp 41-1,2.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

33

admitted by the Panel before this Court.49 As a consequence of this, it is undeniable that the case is bereft of the most essential element for the alleged offense.

71. The Information ought to have been nullified by the Honorable Court due to its vagueness, as was sought in her Omnibus Motion dated 20 February 2018.

72. So, too, during the course of the proceedings before the Supreme Court in De Lima v. Guerrero, et al.,50 arising from a related case, docketed as Criminal Case No. 17-165, now pending before Br. 205 of this court, it was constantly shown that even the DOJ and the OSG have provided incompatible views about the nature of the accusation. The OSG stated, in various portions of its Comment,51 that the charge against the Petitioner is definitely not “Trading in Dangerous Drugs” penalized under Section 5 of RA 9165, but mere conspiracy to commit the same offense, or “Conspiracy to Commit Trading in Dangerous Drugs”, as provided in Section 26 (b) of the same law. Such claim runs counter to the Information, the Warrant of Arrest, and all the previous actions of the DOJ.52 73. The confusion even extended to the Supreme Court. An extensive survey of the Decision53 shows that the actual crime charged remains to be disputed by majority of the members of the Supreme Court. The ponente, Justice Velasco, claims that the crime charged is illegal drug trading. On the other hand, Justices De Castro, Peralta, and Tijam hold that the crime charged is actually conspiracy to commit drug trading, while Justices Caguioa, Leonen, and Carpio holds that the crime charged involved is either direct or indirect bribery.

74. The test to determine the sufficiency of the facts alleged in the Information requires that a person of common understanding would know the offense that is being charged. Yet, it is evident from the Decision that even the learned Justices of the Supreme Court are confused as to what offense is charged against herein accused.

49

Omnibus Order dated 16 June 2017 (Annex “A”), Page 2 citing the Comment/Opposition of the Panel of Prosecutors.

50

G.R. No. 229781.

Pars. 65, (p. 27), 155 (p. 62) and 157 (p. 63) of the OSG’s Comment.

The DOJ’s confusion also becomes apparent as they moved to amend the information in criminal case 17-166 before Regional Trial Court Branch 205 to charge the Petitioner with Conspiracy to Commit Illegal Drug Trading under Section 26 (b) and not as a conspirator in the illegal sale of drugs (Section 5).

G.R. No. 229781, 10 October 2017.

51 52

53

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

34

75. As explained by no less than Supreme Court Associate Justice Carpio, a void information is not merely defective, but void ab initio and, thus, cannot be cured by mere amendment : Dio v. People allowed the correction of the defect in the Information of failure to allege venue. In the present case, however, the defect lies in the failure to allege even at least one of the elements of the crime. There was no allegation of any element of the crime of illegal trade of dangerous drugs. There was no specified seller, no specified buyer, no specified kind of dangerous drug, no specified quantity of dangerous drugs, no specified consideration, no specified delivery, and no specified payment. All that the Information alleged was the use of cellular phones, which is not even an essential element of the crime of illegal trade of dangerous drugs. If, as in the present case, the Information failed to mention even one element of the alleged crime, then the defect is so patent that it cannot ever be cured. There is complete and utter absence of the essential elements of the crime.

Section 4 of Rule 117 allows an amendment of the Information if the defect "can be cured by amendment."

A defective Information can be cured if it alleges some, but not all, of the essential elements of the offense.

However, if the Information does not allege any of the essential elements at all, the Information is void ab initio and is not merely defective. As held in Leviste v.

Hon. Alameda:" It must be clarified though that not all defects in an information are curable by amendment prior to entry of plea. An information which is void ab initio cannot be amended to obviate a ground for quashal. An amendment which operates to vest jurisdiction upon the trial court is likewise impermissible." (Emphasis supplied)

An amendment that cures a defective Information is one that supplies a missing element to complete the other essential elements already alleged in the Information. But when none of the other elements is alleged in the Information, there is nothing to complete because not

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

35

a single essential element is alleged in the Information.54 (Emphasis supplied)

II. THE HONORABLE COURT GRAVELY ERRED IN DENYING HER RESERVATION TO FILE AN OMNIBUS MOTION TO RECALL ARREST WARRANT, DETERMINE PROBABLE CAUSE, QUASH INFORMATION, ORDER REINVESTIGATION AND SUSPEND FURTHER PROCEEDINGS 76. The Honorable Court, in so ruling, merely recited the list of Prohibited Motions under the Revised Guidelines for Continuous Trial of Criminal Cases; 76.1. As to the reservation to file a Motion to Recall Warrant of Arrest, the same is not even listed among the prohibited pleadings. In fact, the rules explicitly list “Motion to quash warrant of arrest” under subsection (c), its non-exhaustive list of “Meritorious Motions”, not (b), its exhaustive list of “Prohibited Motions.” Hence, the denial on that grounds is clearly without basis or support; and 76.2. As to the reservation to file Motions to Quash Information, Order Reinvestigation and Suspend Further Proceedings, the rules are clear that the prohibition against the same are not absolute, and the denial would depend on whether or not certain conditions are satisfied (e.g., whether the grounds therefor are among those allowed under the Rules Court).

Therefore, any ruling that denies such a reservation would be premature and baseless, until and unless the Accused files a Motion based on prohibited grounds.

THE HONORABLE COURT, THEREFORE, OUGHT TO HAVE DENIED THE PROSECUTION’S MOTION TO ADMIT AMENDED INFORMATION, AND, AT THE VERY LEAST DECLINED TO RULE UPON 54

Dissenting Opinion, De Lima v. Guerrero, G.R. No. 229781, 10 October 2017.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

36

THE ACCUSED’S RESERVATION FOR BEING PREMATURE 77. In light of the foregoing, it was incumbent upon the Honorable Court to deny the Motion to Admit Amended Information on the grounds that: 77.1. It attempts to amend a void Information; 77.2. It is, in reality, a substitution, not an amendment, formal or otherwise; 77.2.1. It changes the offense being charged; 77.2.2. It changes the theory of the prosecution (they now claim that the new charge has an entirely different corpus delicti that can be proven even without physical evidence, or even allegation and proof of the illegal drug allegedly traded, etc.); 77.2.3. It lowers the prosecution’s burden of proof and, thus, denies her her first line of defense, after the weaknesses of the prosecution’s case has been amply and consistently demonstrated by the various submissions of the accused before the court in this case.

77.3. Thus, it prejudices the rights of the accused, namely, her right to due process, the right to be presumed innocent, and her right to be informed of the nature of the charge against her; 77.4. Even if the changes can be validly be made, it cannot be done so without prior leave of court and without the conduct of a new preliminary investigation; 77.5. According to the prosecution’s own inculpatory allegations, the crime of illegal drug trading has already been consummated, thus the charge of conspiracy as a crime in itself was already absorbed and can no longer be charge separately; 77.6. The Amended Information itself violates her right to be informed of the true nature and cause of the accusation against her; and

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

37

77.7. Unless the Honorable Court is ready to recall the arrest warrant, suspend proceedings and/or order a reinvestigation, amending the information cannot simply be allowed without undoing the proceedings and processes already had in this case 78. So, too, in light of the prematurity of denying Accused De Lima’s recourse to Motions that are not prohibited at all or per se under the Revised Guidelines for Continuous Trial of Criminal Cases, it was incumbent upon the Honorable Court to grant or, at the very least, decline to rule upon Accused De Lima’s Reservation to File an Omnibus Motion to Recall Arrest Warrant, Determine Probable Cause, Quash Information, Order Reinvestigation and Suspend Further Proceedings.

MOTION FOR PRODUCTION AND INSPECTION OF EVIDENCE 79. Section 10 of Rule 116 of the Revised Rules of Criminal Procedure provides that: Section 10. Production or inspection of material evidence in possession of prosecution. — Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies.

(11a)55 80. Pursuant to the abovementioned Rule, Accused respectfully moves that this Honorable Court issue an Order to the 55

Emphasis supplied.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

38

Panel of Prosecutors to produce and permit the Accused to inspect and photocopy the following documents and object evidence in relation to the case at bar:56 a. Sinumpaang Salaysay of Rodolfo Magleo y Tamayo b. Salaysay of Herbert R. Colanggo c. Sinumpaang Salaysay of Jojo Balingad y Rondal d. Sinumpaang Salaysay of Jaime Patcho e. Sinumpaang Salaysay of Noel Martinez y Golloso f.

Sinumpaang Salaysay of Ex-Police Officer 3 Engelberto Acenas Durano

g. Sinumpaang Salaysay of Joel Capones y Duro h. Sinumpaang Salaysay of German Agojo y Luna i.

Sworn Statement of Hans Anton Tan

j.

Sinumpaang Salaysay of Nonilo Arile y Andaya

k. Sinumpaang Salaysay of Friolan “Poypoy” Lacson Tresitiza l.

Affidavit of Rafael Z. Ragos

m. Supplemental Affidavit of Rafael Z. Ragos n. Affidavit of Jovencio P. Ablen o. Sinumpaang Salaysay of Joenel Sanchez y Tan p. Affidavit of PSSupt. Jerry Crisostomo Valeroso q. Sinumpaang Salaysay of Wu Tuan Yuan a.k.a. Peter Co r.

Sinumpaang Salaysay of Romel Falcasantos y Sotto

s. Sinumpaang Salaysay of Vicente Sy t.

Affidavit of Lt. Col. Ferdinand L. Marcelino

u. Sinumpaang Salaysay of Renante Diaz y Delima v. Sinumpang Salaysay of Jaybee Niño Manicad Sebastian w. Sinumpaang Kontra-Salaysay of Jose Adrian Dera x. Sinumpang Salaysay of Jovencio P. Ablen, Jr. y. Cellphone Transcripts relating to Phone Calls of Rolan Espinosa pursuant to the Joint Resolution dated 14 February 2017.57

56

People of the Philippines vs Leila M. De Lima, Franklin Jesus B. Bucayu, Wilfredo G. Elli, Jaybee Niño Manicad Sebastian, Ronnie Palisoc Dayan, Joenel Tan Sanchez, and Jose Adrian Tiamson Dera, Criminal Case No. 17-167.

57

Page 21 of Joint Resolution dated 14 February 2017.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

39

z. Original Picture of Kerwin Espinosa with Accused Leila De Lima pursuant to the Joint Resolution dated 14 February 2017. 58 aa. Checks encashed at Metrobank – Dr. A. Santos Branch, Sucat by Romel Falcasantos y Sotto pursuant to the Joint Resolution dated 14 February 2017.59 bb. Four vehicles (Silver Honda Civic, Black Honda City, Black Toyota Vios, and Black Toyota Innova) provided

by Wu Tuan Yuan a.k.a. Peter Co pursuant to the Sinumpaang Salaysay of Wu Tuan Yuan a.k.a. Peter Co dated 09 October 2016. cc. Case Operation Plan (Coplan) Cronus pursuant to the Joint Resolution dated 14 February 2017.60 dd. COPLAN Limestone Group provided by Jose Adrian Dera in the Sinumpaang Kontra-Salaysay dated 21 December 2016 submitted to the DOJ Panel of Prosecutors ee. Illegal Drugs (traded by Wu Tuan Yuan a.k.a. Peter Co) pursuant to the Joint Resolution dated 14 February 2017.61 ff. Illegal Drugs (traded by Vicente Sy) pursuant to the Joint Resolution dated 14 February 2017.62 gg. 5 kilograms of Shabu (provided by Hans Anton Tan to Jose Adrian Dera) pursuant to the Sinumpaang Salaysay of Hans Anton Tan dated 19 September 2016; hh. Cellphones used pursuant to the Joint Resolution dated 14 February 2017.63

58

Page 22 of Joint Resolution dated 14 February 2017.

59

Page 23 of Joint Resolution dated 14 February 2017.

60

Page 16 of Joint Resolution dated 14 February 2017.

61

Page 8 of Joint Resolution dated 14 February 2017.

62

Page 9 of Joint Resolution dated 14 February 2017.

63

Page 10 and 20 of Joint Resolution dated 14 February 2017.

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

40

ii. Cellphone used by Hans Anton Tan pursuant to the Sinumpaang Salaysay of Hans Anton Tan dated 19 September 2016; jj. Pictures attached in the Complaint Affidavit of Dante La. Jimenez dated 11 October 2016; kk. Original ML Kwarta Padala Receipt attached in the Complaint Affidavit of Dante La. Jimenez dated 11 October 2016; ll. Log book of New Bilibid Prison in 2016 pursuant to the Sinumpaang Salaysay of Hans Anton Tan dated 19 September 2016; 81. The following records have been mentioned and/or presented during the preliminary investigation previously conducted by the DOJ Panel of Prosecutors.

82. Considering that the abovementioned documents and object evidence are material to the case at bar and to prevent surprise and suppression, Accused respectfully moves for the production, inspection, and photocopying of the abovementioned documents and object evidence in relation to the case at bar.

MOTION TO DEFER ARRAIGNMENT 83. While the foregoing motions are pending, it is respectfully likewise moved that the arraignment scheduled on 16 March 2018 be deferred until such pending incidents have been disposed of.

PRAYER WHEREFORE, it is most respectfully prayed that: 1. The Order dated 24 January 2018 be reversed;

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

41

2. That the Motion to Admit Amended Information be DENIED for utter lack of merit, without prejudice to the filing of a possible motion or any appropriate pleading in the future should the Amended Information be nonetheless admitted.

3. That the Honorable Court take judicial cognizance of the DOJ Panel of Prosecutor’s Judicial Admissions (in the Motion to Admit and Amended Information) as proof that the Information be QUASHED and the case DISMISSED for the facts charged in the Information do not constitute any offense and that, in fact, the Information is null and void.

4. That the denial of Accused De Lima’s Reservation to File an Omnibus Motion to Recall Arrest Warrant, Determine Probable Cause, Quash Information, Order Reinvestigation and Suspend Further Proceedings be reversed and, instead, GRANTED or, at the very least, be deemed premature to rule upon.

5. An order be issued requiring the Department of Justice Panel of Prosecutors to produce and permit Accused De Lima to inspect, photocopy or photograph the aforementioned documentary and object evidence.

6. The arraignment scheduled on 16 March 2018 be deferred.

Other reliefs just and equitable are likewise prayed for.

Quezon City for Muntinlupa City. 15 March 2018.

RIGOROSO GALINDEZ AND RABINO LAW OFFICES 901 Fil Garcia Tower, 140 Kalayaan Avenue, Diliman, 1101 Quezon City Tel. 924-8552; Fax. 929-1609; email add. rgrlaw123@yahoo.com.ph

By:

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

42

TEDDY ESTEBAN F. RIGOROSO PTR # 5521162; 01/03/18; Q.C. IBP # 020461; 01/05/18; Q.C. MCLE Compliance No. V-0005526; 01-14-15 Roll # 42240 REQUEST

The Hon. Clerk of Court Regional Trial Court Branch 205, Muntinlupa City Greetings: Please submit the foregoing OMNIBUS MOTION for the consideration and resolution of the Honorable Court on 23 March 2018 at 8:30 am.

TEDDY ESTEBAN F. RIGOROSO

NOTICE

DOJ PANEL OF PROSECUTORS Attention: SASP Peter Ong Department of Justice Padre Faura St., Manila ATTY. RAYMUND PALAD Counsel for Accused Jose Adrian Dera Palad Lauron Palad Law Firm, Unit 1003 One Executive Office Bldg. No. 5 West Avenue, Quezon City City

OMNIBUS MOTION People v. De Lima, et. al.

Criminal Case No. 17-166

43

Sir/Madam:

Kindly take notice that the foregoing OMNIBUS MOTION shall be submitted for the consideration and resolution of the Honorable Court on 23 March 2018 at 8:30 am.

TEDDY ESTEBAN F. RIGOROSO

EXPLANATION Considering the distance between the parties and the Honorable Court, copies of this Motion were served upon the other parties via registered mail as warranted by the Rules of Court.

TEDDY ESTEBAN F. RIGOROSO Copy Furnished: DOJ PANEL OF PROSECUTORS Attention: SASP Peter Ong Department of Justice Padre Faura St., Manila ATTY. RAYMUND PALAD Counsel for Accused Jose Adrian Dera Palad Lauron Palad Law Firm, Unit 1003 One Executive Office Bldg. No. 5 West Avenue, Quezon City City