08 February 2011

FROM: 2006003458
Section 1B
To: Mr. Irvin Joseph Fabella
Fort Bonifacio Global City
Taguig City, MM
Dear Mr. Fabella:
Here is the opinion you requested.
These are the facts I gathered from you are as follows:
On January 13, 2011, Venson Evangelista, 30 years old went missing in Quezon
City. A day later, his charred body was found in Cabanatuan City, Nueva Ecija. Alfred
Mendiola (alias Allan Torres) and Batibot Parulan were arrested for the alleged murder of
Evangelista, while 4 other suspects remain at large. They are a certain alias of Joel (the
mechanic), alias Roly (the gunman) and masterminds Roger and Raymond Dominguez,
the head of the Dominguez carjacking syndicate.
Subsequently, Mendiola was positively identified by Evangelistas helper as the
man who expressed interest in buying Evangelistas car last week. The 2 nd suspect
confessed to the police that he had some items that were stolen from Evangelista. When
Mendiola and Parulan were arrested, they confessed to Evangelistas murder and pointed
to the Dominguez brothers, as masterminds behind the killing. Mendiola said the group
drew up the plan to carnap Venson Evangelsitas car at an apartment in Greenville
Subdivision in San Fernando, Pampanga on January 13, 2011 past 10:30 am. At that
moment, Mendiola narrated that Roly declared they would kill Evangelista.
According to Mendiola, he was tasked to get in touch with Evangelista to act as
the middleman and pretend to be a buyer and Raymond would act as a lookout on board a
white Ford Expedition, and Jayson would drive a back-up green Pajero. According to the
police report, the green Pajero was likewise recovered in an abandoned car repair shop in
Angeles City, Pampanga.
At around 2 pm, the group left San Fernando and arrived at Evangelistas house in
Quezon City at around 4pm. After haggling over the price of a Toyota Land Cruiser,
Mendiola, Evangelista and a certain Joel went on a test drive. Evangelista drove the Land
Cruiser, accompanied from behind by the green Pajero. At about 4:15 pm, Mendiola said
the group declared their plan to kill Evangelista, and took control of the Land Cruiser.
Quoting his written statement: Tinutukan po siya (Evangelista) ng baril ni Joel. At
bumaba naman mula sa Pajero si Rolly. At dumaan sa drivers seat para tutukan din si
Venson.

From Cubao, the group passed through North Luzon Expressway and reached
Mabalacat, Pampanga sometime past 5pm. Mendiola was asked to go to a mall to buy
two tires and a gallon of gasoline, and before he left he saw Evangelista still in a cruiser
with his mouth, eyes, and hands restrained with a packaging tape. After that, he never
knew what happened next, and he only found out that Evangelista had been killed.
According to Mendiola, the group distributed Evangelistas belongings among
themselves: his cell phone went to Joel; Rolly took his necklace and bracelet, while
Roger took Evangelistas cash amounting to P3, 500 ATM card, drivers license and gun
license.
The question you pose is the possible criminal and civil liabilities that may be
filed against the accused mentioned.
In my opinion, the gravest charge that may be filed against the foregoing suspects
is a qualified carnapping in violation of R.A. No. 6539, or Anti-Carnapping Act of 1972.
The relevant provisions of the Anti-Carnapping Law, in connection with the facts given
provide:
SEC.2. Definition of Terms.- The terms carnapping, motor vehicle,
defacing or tampering with, repainting, body-building, remodeling,
dismantling, as used in this Act, shall be understood, respectively to meanCarnapping is the taking, with intent to gain, of a motor vehicle belonging to
another without the latters consent, or by means of violence against or intimidation of
persons, or by using force upon things.
SEC.14. Penalty for Carnapping- xxx xxx xxx the penalty for reclusion
perpetua to death shall be imposed when the owner, driver or occupant of the carnapped
motor vehicle is killed or raped in the course of the commission of the carnapping or on
the occasion thereof.
Under the last clause of Section 14 of the Anti-Carnapping Act, what is needed is
not only to prove the presence of requisites of carnapping and homicide or murder but
more importantly, it must show that the original design of the culprit was carnapping and
that the killing was perpetrated in the course of the commission of the carnapping or on
the occasion thereof. In other words, all the elements in the crime of carnapping should
be present through a convincing evidence to prove his guilt beyond reasonable doubt.
Any absence of which will lead to the inapplicability of the Act and the crime of either
homicide or murder will be punishable.
The primary element of carnapping is the intent to gain a motor vehicle belonging
to another. This means of unlawful taking by means of violence, intimidation or force
upon things was present when he saw the actual taking-over of the drivers seat and
pointing of the gun to Evangelista by Joel. By use of such force Evangelista was under

duress which compelled him to give the control of the vehicle. Most importantly, there
was a clear intent to gain as Mendiola was positively identified by Evangelistas helper as
the one who expressed his intent to buy the vehicle. In order to commence the execution
of his criminal design, he posed as an interested buyer of the land cruiser Evangelista was
selling.
There is a clear indication of the qualifying acts of carnapping as stated in Sec. 14
when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in
the course of the commission of carnapping or on the occasion thereof. This was apparent
in Mendiolas statements wherein he was asked to go to a mall to buy two tires and a
gallon of gasoline and before he left, he saw Evangelista restrained with a gray packaging
tape. He was killed in the course of carnapping as the gasoline bought is probably used to
kill Evangelista by burning his body together with destroying the evidences and other
effects that may be found. Insofar as the penalty is concerned, all the accused being
pointed at will suffer the penalty of reclusion perpetua (as amended by RA 7659) as
prescribed in the clause mentioned in Section 14.
Another charge that may be filed against all the accused is the crime of murder
aggravated by abuse of confidence pertaining to Mendiola, Jason, and Rolly. Relevant
provisions in relation to the facts are as follows:
ART. 248. Murder- Any person, who, not falling within the provisions of Article
246, shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua, to death if committed with any of the following attendant circumstances:
Xxx

xxx

xxx

1.

With treachery, taking advantage of superior strength, with the aid

of armed men, or employing means to weaken the defense, or of
means or persons to insure or afford impunity;

2.

By means of inundation, fire, poison, explosion, shipwreck, stranding

of a vessel, derailment or assault upon a railroad, fall of an airship by
means of motor vehicles, or with use of any other means involving
great waste and ruin;

3.

With evident premeditation;

Based on the statement of facts, these circumstances are attendant:

1. Treachery- The act of restraining the movement of Evangelista by means of
sealing his mouth, hands, and eyes with a packaging tape is a very clear
indication of the abuse of strength by the perpetrators of the criminal act.
Evangelista had no way of giving resistance as he was taken by surprise when
Joel pointed a gun on him.

2. By means of fire to afford impunity- The body of Evangelista was found

charred. Burning his body is intent to hide the evidence and effects of the
crime.
3. Evident premeditation- The act of Mendiola to pose as a buyer, the open
declaration of Rolly to kill and the meeting at Greenville subdivision
constitutes the careful planning of execution of the criminal design.
With respect to the penalty that can be imposed upon the accused, the penalty
should be the same to all of them regardless of extent of participation since a
conspiracy exists. Mendiola, Jayson, Joel and Rolly had committed acts indicative
of a common criminal purpose. Although conspiracy is not punishable under
murder, it speaks of incurring criminal liability because there is a unity of
criminal purpose. The act of one is the act of all.
The charge of murder against Mendiola and Joel may be aggravated by the
circumstance of abuse of confidence or obvious ungratefulness. Paragraph 4
Article 14 of the Revised Penal Code read:
ART. 14. Aggravating Circumstances- The following are aggravating
circumstances:
Xxx

4. That the act be committed with abuse of confidence or obvious ungratefulness.

This aggravating circumstance is apparently present. First, Evangelista trusted
Mendiola and the rest of his co-accused by letting them test drive first the vehicle
unsuspecting that they might unlawfully take it away from him. From the moment
Joel pointed gun at Evangelista, they had already betrayed his trust. This follows
that the subsequent acts made by the accused such as restricting his movement
preceded the murder.
With regard to the civil liabilities, the Civil Code enumerates the damages that
may be filed:
Xxx
1)
2)
3)
4)
5)
6)

ART. 2197. Damages may be:

Actual or compensatory;
Moral;
Nominal;
Temperate or moderate;
Liquidated; or
Exemplary or corrective.

The damages that may be sought against the accused are Actual and moral
damages for the pecuniary loss sustained by Evangelista such as the landcruiser
that was never recovered, the pain and suffering and injured feeling sustained by
the persons concerned such as the family left behind by the offended party.
Exemplary and corrective damages are filed as to set example or correction for
the sake of public good.
The possible charges that may be filed against Mendiola, Joel, Rolly,
Parulan, Roger and Raymond Rodriguez are carnapping and murder. With respect
to Mendiola, Joel and Rolly, murder aggravated by abuse of confidence or
obvious ungratefulness can be filed. Filing a criminal charge which carries a
greater penalty is recommended, but it entails a burden of presentation of more
convincing evidences to win the case and implicate the accused.
Please inform me from time to time if I can give you further service about
the matter.

Thank
much!

you

very