REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila
------------------------------------------------------------------

PEOPLE OF THE CA-G.R.-HC-CR No. 12766

PHILIPPINES,
Plaintiffs-Appellees, RTC BR. 29, SAN FERNANDO
CITY, LA UNION
-versus-
RTC Case No. 10473
JOEL DON L. ORDINADO, FOR: MURDER
Accused-Appellant.

APPELLANT’S BRIEF

SUBMITTED BY
TAQUED TAQUED and ASSOCIATES LAW OFFICES
#1 Rizal Avenue, Ilocanos Sur,
San Fernando City, La Union

BY:

Atty. Janette Ines Agsaulio

Counsel for Accused-Appellant
 SUBJECT INDEX
Page No. Contents
1 Cover Page
2 Subject Index
3 Prefatory Statement
4 Brief Statement of the Case
5 Brief Statement of the Facts
6 Assignment of Errors
Discussions / Arguments
13 Relief
15 Affidavit of Service

CASES CITED (Order of Appearance)

1. People of the Philippines vs. Webb at al, G.R. No. 176864,

December 14, 2010;
2. People v. Santos, 333 SCRA 319, June 8, 2000;
3. People vs. Teehankee, Jr., G.R. Nos. 111206-08, October 6,
1995 and reiterated in People vs. Timon, G.R. Nos. 977841-42,
November 12, 1997 and in People vs. Arapok, G.R. Nos.
134974, December 8, 2000;
4. People vs. Arapok, G.R. No. 134974, December 8, 2000.
5. People vs. Belaje, G.R. No. 125331, November 23, 2000,
345 SCRA 604, reiterated in People vs. Atadero, et. al.,
G.R. Nos. 135239-40, August 12, 2002
6. People vs. Bulawin, 29 SCRA 710;
7. People vs. Cunanan, 19 SCRA 769;
8. People v. Maguing, G.R. No. 144090, June 26, 2003

LAW AND ANNOTATIONS CITED

None

LIST OF ANNEXES

1. Annex “A” – Decision dated January 3, 2018 (sic);

2. Annex “B” – Motion for Reconsideration dated January 21,
2019;
3. Annex “C” – Order of the Honorable Court dated February 20,
2019

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 REPUBLIC OF THE PHILIPPINES
COURT OF APPEALS
Manila

PEOPLE OF THE CA-G.R.-HC-CR No. 12766

PHILIPPINES,
Plaintiffs-Appellees, RTC BR. 29, SAN FERNANDO
CITY, LA UNION
-versus-
RTC Case No. 10473
JOEL DON L. ORDINADO, FOR: MURDER
Accused-Appellant.
X-----------------------------------X
PREFATORY STATEMENT

Not all denials and alibis should be regarded as fabricated. Indeed,

if the accused is truly innocent, he can have no other defense but denial
and alibi. So how can such accused penetrate a mind that has been made
cynical by the rule drilled into his head that a defense of alibi is a
hangman’s noose in the face of a witness positively swearing, "I saw him
do it."? Most judges believe that such assertion automatically dooms an
alibi which is so easy to fabricate. This quick stereotype thinking,
however, is distressing. For how else can the truth that the accused is
really innocent have any chance of prevailing over such a stone-cast
tenet?

There is only one way. A judge must keep an open mind. He must
guard against slipping into hasty conclusion, often arising from a desire to
quickly finish the job of deciding a case. A positive declaration from a
witness that he saw the accused commit the crime should not
automatically cancel out the accused’s claim that he did not do it. A lying
witness can make as positive an identification as a truthful witness can.
The lying witness can also say as forthrightly and unequivocally, "He did
it!" without blinking an eye.1

APPELLANT’S BRIEF

With utmost respect to the Honorable Court of Appeals.

Accused-appellant Joel Don L. Ordinado, through the

undersigned counsel, hereby submits his Appellant’s Brief for
consideration of this Honorable Court.

TIMELINESS OF THE APPEAL

On January 8, 2019, accused-appellant received a copy of the

Decision of the Regional Trial Court dated January 3, 2019 (sic). A
1
G.R. No. 176864, December 14, 2010 .
3
Motion for Reconsideration was filed on January 23, 2019. On March
12, 2019, the undersigned counsel received a copy of the Order of the
Honorable Court denying the Motion for Reconsideration dated
February 20, 2019. A Notice of Appeal was timely filed on March 21,
2019. On June 3, 2019, the undersigned received the Order from the
Court of Appeals directing her to file her Appellant’s Brief within
thirty (30) days from receipt. However, on June 27, 2019, the
undersigned asked for additional time to file Appellant’s Brief until
August 2, 2019. Hence, this timely compliance.

BRIEF STATEMENT OF THE CASE

The accused was charged of Murder under the following:

INFORMATION

The undersigned Provincial Prosecutor of the province

of La Union accuses JOEL DON ORDINADO for the
crime of AGGRAVATED MURDER committed as
follows:

“That in the evening of February 3, 2014, in Brgy.

Baroro of the municipality of Bacnotan, Province of La
Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with intent
to kill one NENITA CABAGBAG-MILLARES did then
and there willfully, unlawfully and feloniously shoot said
NENITA CABAGBAG-MILLARES several times inflicting
upon her multiple and fatal injuries which caused her
death, the said killing having been qualified by
treachery, and aggravated by the use of an unlicensed
firearm, to the damage and prejudice of the heirs of the
said NENITA CABAGBAG-MILLARES.

CONTRARY TO LAW.”

BRIEF STATEMENT OF FACTS

The facts of the case can be summarized as follows:

On July 24, 2013, accused Joel Don L. Ordinado went to

Mayabo, Payao, Zamboanga Sibugay along with her partner,
Milabelle Ramos. They were accompanied by Romar Navor-om in
going to the Batangas port going to Zamboanga. He lived and stayed
there until February 14, 2016. During his stay in Zamboanga, he did
not go home to La Union.

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 At around 8:05 in the evening of February 3, 2014, victim
Nenita Cabagbag-Millares (Nenita), her younger sister Florence
Cabagbag-Claro (Florence), and her nephew Lemuel Cabagbag-Claro
(Lemuel), were having dinner at the back of the house of Nenita at
Greenville Subdivision, Brgy. Baroro, Bacnotan, La Union when a
male person went along with their goats and shot Nenita several
times resulting to her death.

Both Florence and Lemuel described the assailant of Nenita as

a male person wearing a blue jacket with hood and a blue jersey short
pants. They narrated that they were able to see the face of said
assailant because his hood was removed when he jumped over one of
the goats to reach where Nenita was seated and because their kitchen
was brightly lighted with street lights.

Florence and Lemuel executed their Sworn Statements on

March 24, 2014, the same day when they were shown by Police
Office 3 Rommel Barrairo (PO3 Barrairo) with five (5) photographs
of different persons from the Rouge’s Gallery and they both pin-
pointed the photograph of Joel Don Ordinado (Joel) as Nenita’s
assailant.

The accused was held at a police checkpoint at Quezon

Province while on his way home through a bus on February 16, 2016.
He pleaded not guilty to the crime charged against him when he was
arraigned.

ASSIGNMENT OF ERRORS

The trial court committed the following errors:

I. WHETHER OR NOT THE PROSECUTION WAS

ABLE TO PROVE THE IDENTITY OF THE ACCUSED
AS THE ASSAILANT BEYOND REASONABLE
DOUBT.

DISCUSSIONS / ARGUMENTS

I. THE PROSECUTION WAS NOT ABLE TO PROVE

THE IDENTITY OF THE ACCUSED AS THE
ASSAILANT BEYOND REASONABLE DOUBT.

In every criminal prosecution, the prosecution must prove two

things: (1) the commission of the crime and (2) the identification of
the accused as the perpetrator of the crime. 2
2
People v. Santos, 333 SCRA 319, June 8, 2000
5
 The Regional Trial Court based the conviction of the accused
by giving credence on the positive identification by prosecution
witnesses Florence and Lemuel, Nenita’s sister and nephew,
respectively, as against the defense of alibi of the accused.

Positive identification, tarnished with doubts as to whether the

assailant seen by the witness during the incident was the same person
as the accused, is a shaky foundation upon which to base a
conviction for a very serious crime of murder. The likelihood of
identifying the assailant of the crime with certainty when the
witnesses saw the assailant for the very first time and only
“momentary” under stressful and life-threatening circumstances is
highly questionable.

The prosecution witnesses’ recollection of the appearance

of the assailant is highly unreliable and raises serious doubts as
to whether the assailant they saw is the same person as the
accused or as to whether the witnesses has made a positive
identification at all.

The trial court relied heavily on the “positive identification” of

the prosecution witnesses in convicting the accused for the crime of
murder. Positive identification of a suspect by a witness entails being
able to establish that aside from having seen the suspect at the crime
scene, the suspect left indelible or at least memorable mark/s in the
memory of the witness so as to facilitate his recall of his or her
appearance. The process of pin-pointing at the accused among the
Rogue’s Gallery and saying that this person is the same person whom
the witnesses saw at the crime scene is troubled with dangers of mix-
ups and mistaken identities.

The prosecution must endeavor to establish with certainty that

the person whom the witnesses saw at the crime scene is the same
person as the accused. Such identification should involve a degree of
certainty that rules out any possibility of a mix-up or mistaken
identity and cannot be convincingly accomplished by simply asking
the witnesses to point to the suspect without showing any reference
which the witness used in identifying the suspects.

Factors such as the distance of the witnesses from the suspect,

the length of time that the witnesses had seen the assailant, their
ability to recall, the presence or absence of any distraction that could
affect their attention to the appearance of the suspect, all of which
become relevant and must all point to a certainty of establishing the
identity of the suspect. But more significantly, the witnesses must be
able to recall and relate to the court certain specific or distinct
characteristics of the suspect that would establish a well-founded

6
belief that the suspect could not have been any other person than the
accused.

It is noteworthy that prosecution witness Lemuel Clao

Cabagbag testified that he was five (5) meters away from his aunt
when the assailant shot her from about two (2) meters away – that
makes him about 7 meters away from the assailant. He also testified
that the incident happened at night. Thus, it is hard to believe that a
person can clearly see a person’s face whom he or she saw for the
first time during night time from a distance of seven (7) meters and
recognize him or her thereafter.

While it might be too stringent a test to require that witnesses

must be able to point certain characteristics unique to the suspect, or
if not, at least several memorable characteristics that pertain to the
suspect indicating a convincing reason why those characteristics
stuck to the witness’ mind, yet, it might be the only safeguard to rule
out any possibility of a mix-up or mistaken identity. Besides, this
would be in keeping with the rule in criminal prosecution that the
guilt of the accused must be established beyond reasonable doubt.

The Court adopted the totality of circumstances test in

resolving the admissibility of and relying on out-of-court
identification of suspects as follows:

“In resolving the admissibility of and relying on out-of-

court identification of suspects, courts have adopted the
totality of circumstances test where they consider the
following factors, viz: (1) the witness’ opportunity to
view the criminal at the time of the crime; (2) the
witness’ degree of attention at that time; (3) the
accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at
the identification; (5) the length of time between the
crime and the identification; and (6) the suggestiveness
of the identification procedure.” (People vs. Teehankee,
Jr., G.R. Nos. 111206-08, October 6, 1995 and reiterated
in People vs. Timon, G.R. Nos. 977841-42, November
12, 1997 and in People vs. Arapok, G.R. Nos. 134974,
December 8, 2000)

Most cases of conviction of the accused based on positive

identification made by eyewitnesses involved the fact that the
suspect/s are either personally known or are already familiar to the
witnesses beforehand. The witnesses, because of their familiarity
with the suspect, were able to recognize them at the time they
commit the crime and can readily identify them at any given time.

7
 However, this is not always the case. More often than not,
witnesses do not personally know or are not even acquainted with the
suspect whom they might have seen only for the first time. In such
instances, the witnesses’ recollection of the suspect should be
subjected to a more demanding or rigorous test to rule out any
mistake. It must not be sufficient that the witnesses cursorily point at
the accused and tell that this is the person he has seen commit the
crime but they must show all the circumstances that aid the witness
in recalling with certainty the identity of the suspect.

Florence and Lemuel made out-of-court and in-court

identifications of Joel as the assailant. Both identifications should be
regarded as inherently weak and should not have been relied upon as
basis for conviction of accused-appellant following the totality of
circumstances test cited above.

The first time that Florence and Lemuel were made to identify
the accused as the assailant was when they went to the police station
and were shown photographs of different persons from the Rogue’s
Gallery on March 24, 2014, the same time when they executed their
Sworn Statements, almost two (2) months after the incident
transpired. Based on the totality of circumstances test, one of the
factors to be considered is “the length of time between the crime and
the identification”. As mentioned, it took almost two (2) months
from the time of the incident to the time when they were made to
identify Nenita’s assailant from among the photographs in the
Rogue’s Gallery.

It can be said that the out-of-court identification of Florence

and Lemuel is characterized by suggestiveness as Florence and
Lemuel was made only after two (2) months from the time of the
incident. Moreover, it must be noted that in all those photographs, it
was only the photograph of the accused where the person is wearing
a cap and a hooded jacket. Lemuel, on cross, testified as follows:

“Atty. Agtarap:
xxx

Q: What about the other male persons, because

according to you there were five photographs of
different persons, were the different persons wearing
a cap and a hooded jacket also as depicted in Exhibit
“F”?
A: No sir.
Q: In all those photographs that were shown to you, it
was only the photograph of the accused where the
person is wearing a cap and a hooded jacket?

8
 A: Yes sir.” (TSN, Testimony of Lemuel Claro, January
13, 2017, p. 13)

What was stored in the memory of the witnessed could have

been fleeting impressions of the appearance of the assailant at the
time of the incident particularly his clothing which they
characterized as a male person wearing a pair of jersey short pants
and a blue jacket with hood. The face of the assailant could have
been easily erased and replaced with the numerous faces (including
police investigators, hospital personnel and bystanders, among
others) they encountered from the day that the incident occurred up
to the time they had identified the suspect through a photograph.

The subsequent in-court identification of the particular

accused, therefore, is nothing but a mere cursory pointing to the
accused which can never amount to a positive identification.
Interestingly significant is the fact that the witnesses’ description of
the assailant given to the police investigator as contained in their
Sworn Statements only pertains to the particular clothing that the
assailant wore during the incident. In addition, Florence and Lemuel
were with each other when they identified the accused through a
photograph.

The immense possibility that the actual assailant of the Nenita

is still roaming freely necessitate revisiting what the Court has said:

“Once again we stress that the correct identification of

the author of a crime should be the primal concern of
criminal prosecution in any civilized legal system.
Corollary to this is the actuality of the commission of the
offense with the participation of the accused. All these
must be proved by the State beyond reasonable doubt on
the strength of its evidence and without solace from the
weakness of the defense. Thus, even if the defense of the
accused may be weak, the same is inconsequential if, in
the first place, the prosecution failed to discharge the
onus on his identity and culpability. The presumption of
innocence dictates that it is for the people to
demonstrate guilt and not for the accused to establish
innocence.” (People vs. Arapok, G.R. No. 134974,
December 8, 2000).

The testimony of the witnesses reveals incredible details that

are contrary to human experience. The witnesses did not see the
assailant for a long time. If ever he saw them, it was only for a brief
moment – “momentary” in the word of one of the witnesses. (TSN,
Testimony of Lemuel Claro, January 13, 2017, p. 12). Hence, it is a
natural reaction to such startling event as the fear that he might get

9
shot at would be to take cover of himself based on human nature and
experience.

As the Court has ruled in various cases:

“Under the law on evidence, to be credible, testimonial

evidence should not only come from the mouth of a
credible witness, it should also be credible, reasonable,
and in accord with human experience. It should be such
that under the common experience and observation of
mankind the testimony in question would lead to no other
inference than its probability under the circumstances.
This holds true especially in cases where there is no test
by which to determine its veracity except its conformity
to our knowledge, observation and experience.” (People
vs. Belaje, G.R. No. 125331, November 23, 2000, 345
SCRA 604, reiterated in People vs. Atadero, et. al., G.R.
Nos. 135239-40, August 12, 2002)

The defense of alibi presented by the accused in this case

gains significance with the weakness of the prosecution’s
evidence that does not concretely pin down the suspect as the one
who committed the crime.

Just like this case, there are a lot of instances that alibi and
denial are the only defenses available to the accused. For how else
would the accused rebut the allegations that he was the one who
committed the crime than by denying his involvement in it and by
presenting in court his whereabouts to prove that he was not at the
crime scene at the time that it happened.

The defense of alibi cannot be given credence and is greatly

weakened when there is a strong evidence of positive identification
that establishes with moral certainty the presence of the accused at
the crime scene and evidence establishing the culpability of the
accused to the crime complained of. However, when the witnesses
did not have any previous association with the assailant and more so
when they only saw the assailant for a very brief moment and under
highly stressful conditions, there is always a possibility that the
witness might not be able to accurately ascertain the identity of the
suspects.

With no other evidence linking the accused to the crime except

the questionable identification of the witnesses, there is no strong
basis for pinning culpability to the accused-appellant. In such an
instance, his defense of alibi gains credibility and should be looked
into by the court.

10
 In the following cases, the Court gave credence to alibi as a
defense:

“Where the evidence of the prosecution is weak and

betrays lack of concreteness on the question on whether
or not the defendant is the author of the crime charged,
alibi as a defense assumes importance.” (People vs.
Bulawin, 29 SCRA 710).

“Where the identification of the accused as the author of

the crime is unreliable, his defense of alibi assumes
importance and may be given credence.” (People vs.
Cunanan, 19 SCRA 769).

Indeed, the defense of alibi should not, at once, be looked with

disfavor and be given a mental prejudice against the accused for it
may be sufficient to acquit him.
In criminal prosecution, the prosecution must rely on the strength of
its own evidence, and not on the weakness of defense, to establish
the guilt of the accused. It is the prosecution’s duty to make sure that
no mistake in identification of the accused is committed to the
prejudice of innocent individuals.

When the identity of the appellant is not established beyond

reasonable doubt, acquittal necessarily follows. Conviction for a
crime rests on the strength of the prosecution’s evidence, never on
the weakness of that of the defense. (People v. Maguing, G.R. No.
144090, June 26, 2003)

Hence, the alibi presented by the accused Joel that he was in

Zamboanga from July 24, 2013 to February 14, 2016 making it
impossible for him to be at Baroro, Bacnotan, La Union on February
3, 2014, the same day that the complained crime of murder happened,
should have been given credence.

RELIEF

WHEREFORE, premises considered, it is respectfully prayed

of the Honorable Court of Appeals that accused Joel Don Ordinado be
acquitted in the above-entitled case.

Accused-appellant further prays for such other relief as may be

just and equitable in the premises.

July 24, 2019, San Fernando City, La Union, for Manila,

Philippines.

TAQUED TAQUED & BY:

11
ASSOCIATES ATTY. JANETTE INES AGSAULIO
LAW OFFICES Roll No. 65432, June 20, 2016
Counsel for the accused- IBP No. 097506, January 3, 2019
appellant Joel Don L. PTR No. 1341480, January 3, 2019
Ordinado Notarial Commission No. 003-2018
MCLE No: VI-0004072, Nov. 21, 2017
# 1 Rizal Avenue, Ilocanos TIN NO. 273-629-431
Sur, San Fernando City, La C.P. No. 09177280034
Union [email protected]

12
 NOTICE / COPY FURNISHED

COURT OF APPEALS
Ma. Orosa St., Ermita, Manila

The Clerk of Court

Regional Trial Court
Branch 29
San Fernando City, La Union

Office of the Solicitor General

134 Amorsolo St. Legaspi Village
1229 Makati City

EXPLANATION

The foregoing Appellant’s Brief was filed and served thru registered
mail due to lack of messengerial personnel and time constraint in the
filling thereof.

JANETTE INES AGSAULIO

13
Republic of the Philippines)
Province of La Union )
San Fernando City ) s.s.

AFFIDAVIT OF SERVICE

I, SANILYN V. RAMIREZ, of legal age, single, Filipino citizen, and with

office address at the #1 Rizal Avenue, Ilocanos Sur, San Fernando City, La Union,
hereby declare and state that after having been duly sworn to an oath in accordance
with law do hereby depose and say that;

1. I am the Legal Secretary of Taqued Taqued and Associates Law offices;

2. On August 2, 2019, I served a copy of the following pleadings by registered mail and
personal service in accordance with the Rules of Court:
Two Appellant’s Briefs including their Annexes entitled people
of the Philippines vs. Joel Don L. Ordinado and John Doe under
CA-G.R. HC-CR NO. 12751 and People of the Philippines vs.
Joel Don L. Ordinado under CA-G.R.-HC-CR No. 12766 to the
Office of the Solicitor General134 Amorsolo St. Legaspi
Village1229 Makati City with postage fully paid, as evidenced
by the Registry Return Receipt No. _________________ hereto
attached and with instructions to the courier to return the mail
to the sender after ten (10) days if undelivered;

By personal Delivery to the Clerk of Court, Branch 29, Regional

Trial Court, San Fernando City, La Union.

3. I am voluntarily and independently executing this Affidavit for all legal intents and
purposes this may serve best.
IN WITNESS WHEREOF, I hereby set my hand this 2 nd day of August 2019 in the City
of San Fernando, Philippines.

SANILYN V. RAMIREZ
Affiant

SUBSCRIBED AND SWORN to before me this 2 nd day of August 2019 in the

City of San Fernando, La Union, Philippines. Affiant is personally known to me .

ATTY. JANETTE INES AGSAULIO

NOTARY PUBLIC – LA UNION
Doc No_____; Until December 31, 2019
Page No. ____; Roll No. 65432, June 20, 2016
Book No. XV; IBP No. 097506, January 3, 2019
Series of 2019 PTR No. 1341480, January 3, 2019
Notarial Commission No. 003-2018
MCLE No: VI-0004072, Nov. 21, 2017
TIN NO. 273-629-431
C.P. No. 09177280034
[email protected]
#1 Rizal Avenue, Ilocanos Sur
San Fernando City, La Union

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