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Republic of the Philippines COURT OF APPEALS Manila FIRST DIVISION



C.A.-G.R. CV No. 1234

ROB R. YAN, Defendant-Appellant.



Counter-Statement of Facts

The Statement of Facts in the Plaintiff-Appellants Brief contains inaccuracies which need to be corrected, that we prefer to make our own counter-statement of facts as appearing in the folders of exhibits of this case.

On August 20, 2009, around 8:30PM, while private complainant Ronda X. Rivera was on her way home from work, the left rear tire of her care blew out in a dimly lit area somewhere in Quezon City. After sometime, three men appeared and at gunpoint, demanded Ronda to step out of the car. While the leader pointed the gun at Ronda, the other two rummaged through the vehicle for valuables. They were able to get Riveras green Lacoste handbag (with cash and several credit and identification cards), black Nokia N91 cell phone, earrings, the engagement ring and the AppleMac laptop, all estimated to be worth P150,000. Despite her pleas, Ronda was dragged and raped to a nearby grassy area. Riveras hands were also tied and her mouth was stuffed with gauze. The man holding the gun raped her at gunpoint while the others cheered him on. It was not until after three hours that a couple saw Ronda unconscious and immediately brought her to the hospital and called the police.1 Two days after the unfortunate accident, Rivera submitted herself for physical examination at the National Bureau of Investigation under the supervision of Medico-Legal Officer, Dr. Ma. Maybelline Quinto. Dr. Quinto reported2 that Rivera could possibly have been raped.

In paragraph 1.03 of its statements of the facts, defendant-appellant Rob R. Yan claimed that he was reviewing for an exam in his house at Manggahan,

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Exhibit 1, folder of exhibits, p.1 Exhibit 2, folder of exhibits, p. 2

Fairview Quezon City. Even if this was true, Yan can still have committed the crime for it happened in a vacant lot that is two streets away from his house.

In paragraph 1.04, defendant-appellant denied having known Allan Alae and Bob Sy, the other defendants, when however, it was shown in the statement3 of state witness Jane Clara, that she, Yan and the other defendants are very good friends. This is further confirmed by several pictures of the defendants and said witness taken on various dates.4


First Alleged Error: The Trial Court erred in giving full weight and credence to the testimony of private complainant The trial court did not so err. As a general rule, findings of the trial courts relating to the credibility of witnesses should not be disturbed. It is an established doctrine that the evaluation of testimonial evidence by trial courts is given great respect because of its opportunity to observe first-hand the disposition of the witnesses. Failure to show that certain facts of substance and significance have been plainly

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Exhibit 7, folder of exhibits, p. 8 Exhibit 8, 9, 10, folder of exhibits, p.9

overlooked or that the findings are arbitrary, conclusions reached by the trial court must be respected and the judgment rendered affirmed.5

Rivera is a successful and beautiful woman. Her education and status in life are proof of her credibility, maturity and intelligence. It is not in her character to make baseless accusations especially something as grave as rape. Rivera might have indeed executed a number of statements but leniency must be given to her for the embarrassment and taint of dignity she got from the incident. In a psychological test6 conducted by Dr. Regina Garcia, Rivera showed signs of post-traumatic disorder, however, Rivera was consistently able to identify and made certain who were her perpetrators. Also, categorical and consistent positive identification, absent any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over the appellant's defense

Second Alleged Error: The trial court erred in finding the defendant-appellant guilty beyond reasonable doubt of the crime charged The trial court did not so err. Like in the case of People v. Esquillo7, appellant failed to present other witnesses such as their househelp whom he said was with him in the house. It
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People of the Philippines v. Nicolas Ramos, G.R. No. 120280, April 12, 2000 Exhibit 3, folder of exhibits 7 People of the Philippines v. Cesar Esquillo, G.R. No. 71311, March 31,1989

can also be gleaned that the testimonies of the witnesses presented by the defendant showed untruthfulness. The credibility of the witnesses is highly questionable, like the testimony of Yans mother, Mrs. Anita Yan, who evidently, was motivated only by the desire to protect her son from conviction.8

Third and Fourth Error: The trial court erred in finding that there was conspiracy among the accused The trial court did not so err. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It may be deduced from the manner in which the offense is committed, as when the accused acted in concert to achieve the same objective. In order to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or in furtherance of conspiracy. The overt act may consist of active participation in the actual commission of the crime itself or it may consist of moral assistance to his co-conspirators by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy.9

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TSN, January 5, 2010, pp.25-26 People of the Philippines v. Romeo Santiago,, G.R. No. 129371, October 4, 2000

In the cross-examination of state witness Jane Clara, she said that she observed Yan and the other defendants crouching behind the cover of an electric post. She stood behind a parked car to see what the three will do and after sometime, the three approached the red CRV with plate number RXR 100, and at gunpoint told the lady driver to go down. Out of fear, Clara stayed where she was and she was able to witness the whole incident.10 One was assigned to hold the gun while others got Riveras belongings. Two of the defendants also gave moral assistance to Yan when they ecstatically cheered for him while taking sexual advances against Rivera. There was a close and spontaneous coordination in the attack committed by Yan and the other defendants, evincing the existence of conspiracy.

Fifth Error: The trial court erred in outrightly disregarding defendant-appellants defense of alibi and denial, despite the fact that the same is credible and was corroborated by another witness The trial court did not so err.

For alibi to prosper as a defense, one must not only prove that he was somewhere else when the crime was committed but must also show that it was

TSN, January 7, 2010, pp.30-31

physically impossible for him to have been at the locus criminis. The requirements of time and place must be strictly met.11

Both requisites are wanting. First, Yan stated he was reviewing for an exam in his house at Manggahan, Fairview on August 20, 2009 when the robbery with rape happened. The scene of the crime, however, was at Manukan, Fairview, just two streets away from Yans. Second, Yan failed to show that it was physically impossible for him to be at the crime scene considering its proximity to his house which was a five-minute walk. Categorical and consistent positive identification, absent any showing of ill-motive of the witnesses testifying, prevails over the appellants defense of denial and alibi.

Sixth Error: The trial court erred in appreciating against the defendant-appellant the circumstances of nighttime and treachery The trial court did not so err. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without any risk to the


People of the Philippines v. Bonifacio San Agustin, G.R. No. 135560-61, January 24, 2001

aggressor, without the slightest provocation on the victim's part.12 On the other hand, for nocturnity to be properly appreciated, it must be shown that it facilitated the commission of the crime and that it was purposely sought for by the offender.13

Riveras tire just blew out and her cellphone battery was dead so she could not have asked for any help when suddenly three men, one of which was Yan, appeared from behind and at gunpoint forced open her car. Rivera was totally unaware that she would be attacked as she testified that she did not notice any bystanders while she was still driving. Moreover, the suddenness of attack of the three defendants, together with the act of tying Rivers hands and stuffing her mouth with gauze constitute the presence of alevosia.

On the issue of nocturnity, the testimony of state witness Clara will again show that she has observed that Yan and the other defendants had been habitually hanging out at night at a certain post, drinking and smoking. She also noticed that every time that a red honda CRV with plate number RXR 100 will pass by, they will make a toast and they cheer each other on. It goes to show that the three have been accustomed that Rivera passes by at such street and having an untinted car, the three can very well see who is inside. The three
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People of the Philippines v. Joey Manlansing, et. Al., G.R. No. 131736-27, March 11, 2002 People of the Philippines v. Rogelio Moreno, G.R. No. 140033, January 25, 2002

defendants, obviously, was just waiting for that right moment and that moment came when the tire of River blew out. They did not have any second thoughts but did then and there, willfully and unlawfully took advantage of Riveras womanhood. Seventh and Eight Error: The trial court erred in imposing the penalty of death against the appellant. The trial court did so err. Article 294 of the Revised Penal Code prescribes the penalty for Robbery with Rape, to wit:
Art. 294. Robbery with violence against or intimidation of persons; Penalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed; or when the robbery shall have been accompanied by rape or intentional mutilation or arson. 14

As the penalty is composed of two indivisible penalties, and in view of the presence of the aggravating circumstance of nocturnity, the higher penalty, which is death, should be imposed. However, with the effectivity of Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," appellant shall be sentenced of the penalty of reclusion perpetua without eligibility for parole.15
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The Revised Penal Code of the Philippines, Republic Act No. 3815, As Amended (1932) People of the Philippines v. Nelson Palma, G.R. No. 189279, March 9, 2010


Under the facts and circumstances, it is clear that defendant-appellant Yans defense are based mainly and merely on alibi and denial. Unless substantiated by clear and convincing proof, such defense is negative, selfserving, and undeserving of any weight in law. The witnesses presented by the defense came in court with uncleaned hands and failed to keep in mind to tell the truth in the service of justice and fairness


In view of all the foregoing, it is respectfully prayed that the appeal interposed by the appellant in the above-entitled case be dismissed, and to affirm in full the questioned Decision of the Trial Court docketed as Criminal Case No. 654321 and dated May 21, 2010, declaring such to be immediately final and executory.

Manila, April 5, 2010.

STACY L. CUNANAN Counsel for Plaintiff-Appellee Associate Solicitor, Office of the Solicitor General 4/F Office of the Solicitor General Building 134 Amorsolo Street

Makati City PTR 346872 01-08-97 Makati IBP 674979; 01-07-97 Makati

Copy Furnished: ISRAEL BANDOY Counsel for Defendant-Appellant 3/F Enterprise Building Ayala Avenue, Makati City