The accused, Sammy Odencio and Felix Lupaz, have filed a motion requesting the deferment of their arraignment and for the case to be remanded to the Office of the City Prosecutor for completion of the preliminary investigation. They argue that they were previously unable to participate in the preliminary investigation due to lack of understanding and financial incapacity. They further argue that the complainant's statements contain falsehoods and that the physical altercation occurred only between the complainant and one of the respondents, in self-defense, while the other accused were merely present. The accused request that their counter-affidavits be accepted and the case be re-investigated to protect their right to due process.
The accused, Sammy Odencio and Felix Lupaz, have filed a motion requesting the deferment of their arraignment and for the case to be remanded to the Office of the City Prosecutor for completion of the preliminary investigation. They argue that they were previously unable to participate in the preliminary investigation due to lack of understanding and financial incapacity. They further argue that the complainant's statements contain falsehoods and that the physical altercation occurred only between the complainant and one of the respondents, in self-defense, while the other accused were merely present. The accused request that their counter-affidavits be accepted and the case be re-investigated to protect their right to due process.
The accused, Sammy Odencio and Felix Lupaz, have filed a motion requesting the deferment of their arraignment and for the case to be remanded to the Office of the City Prosecutor for completion of the preliminary investigation. They argue that they were previously unable to participate in the preliminary investigation due to lack of understanding and financial incapacity. They further argue that the complainant's statements contain falsehoods and that the physical altercation occurred only between the complainant and one of the respondents, in self-defense, while the other accused were merely present. The accused request that their counter-affidavits be accepted and the case be re-investigated to protect their right to due process.
METROPOLITAN TRIAL COURT Makati City PEOPLE OF THE PHILIPPINES - versus -
Crim. Case No. 385021
For: Serious Physical Injury
SAMMY ODENCIO and
FELIX LUPAZ Accused, x-----------------------------------------------x
Motion for Judicial Determination of Probable Cause
or to Otherwise Remand the Case for the Completion of the Preliminary Investigation with Prayer for the Deferment of Arraignment Proceedings The Accused SAMMY ODENCIO and FELIX LUPAZ, herein assisted by the Integrated Bar of the Philippines (Makati Chapter) through undersigned counsel, most respectfully state that: 1. On or about June 2015, they received a subpoena from the Office of the City Prosecutor of Makati requiring them to file their respective counter-affidavits along with other supporting documents and affidavits of witnesses, and to appear before the said City Prosecutor on the 30th of June and 7th of July, 2015. The subpoena was issued in NPS No. XV-05-IV-15F-2237 entitled, HENRY R. BINAG, Complainants versus EDNER
GEALAN et. al. Respondents, from which this case
originated. 2. The Accused failed to file the required counter-affidavits and actively participate in the preliminary investigation proceedings due to the lack of proper educational attainment and understanding of the rules of law. This is further aggravated by the lack of financial incapacity, being indigents, to obtain the assistance of counsel. 3. On January 13, 2016, the Accused-Movants received the Order from this Honorable Court notifying them of their arraignment and pre-trial on April 19, 2016 at 8:30 in the morning. After having sought the assistance of the IBP Makati Chapter, the Accused now respectfully move that the arraignment be deferred pending reinvestigation from the prosecutors office for them to be allowed to file their respective counter-affidavit to refute the claims made by herein complainant against them. 4. Having shown that Accused did not have the capability nor the knowledge to comprehend, let alone respond to the orders of the Office of the City Prosecutor of Makati about any Preliminary Investigation having been scheduled thereon, it follows that they were denied of their substantive right to due process. The SUPREME COURT has enunciated thus: xxx This Court pointed out in Duterte v. Sandiganbayan, [t]he purposes of a preliminary investigation or a previous inquiry of some kind, before an accused person is
placed on trial, is to secure the innocent
against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional in its fundament, it is a component part of DUE PROCESS in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; IT IS A SUBSTANTIVE RIGHT. To deny the accuseds claim to a preliminary investigation would be to deprive him of the full measure of his RIGHT TO DUE PROCESS. 5. Since the completion of the Preliminary Investigation in the above-captioned cases is warranted and proper, the proceedings in the meantime should be SUSPENDED, conformably to relevant pronouncements of the High Court, as follows: xxx The right of a person to preliminary investigation is recognized by the law and is governed by the Rules of Court. However, the failure to accord this right does not ipso facto result in the dismissal of the
information; the case is merely SUSPENDED
and the prosecutor directed to conduct the proper investigation. xxx Furthermore, it has been held that responsibility for the absence of a preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. We reiterate the following ruling of the Court in People v. Gomez: If there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. 6. Herein Accused respectfully requests this Honorable Court to take a closer look into the evidence adduced, to wit: a. The Private Complainants statement of facts are filled with falsehoods and deception which he made under oath. Private Complainant lied when he indicated that he has no obligation to Felix Lupaz. Furthermore, the affidavits of b. The truth is that Felix Lupaz went home with his wife after the verbal argument between him and Henry Binag ceased.
c.
The physical altercation happened only
between Edner Gealan and Henry Binag, when the former acted in self-defense after the Private Complainant, being under the influence of alcohol, threw an initial punch against Edner Gealan. Sammy Odenso, and Mark Laureta were at the scene merely to pacify the situation.
d. Contrary to the claims of the Complainant
that he has no prior obligations to Feliz Lupaz, he was in fact a former tenant leasing a space at a residence owned by the niece of Felix Lupaz and Amelia Lupaz located along Guiho St. Cembo, Makati City. Felix Lupaz and Amelia Lupaz were assigned as caretakers of the property. Attached herein is a copy of the record of tenants staying in the Lupaz Residence handwritten by Amelia Lupaz herself marked as Annex A. e. Private Complainant, during the period which he resided in the said residence, persistently refused to comply with his obligation to pay rent and corresponding electric bills for a span three months that Amelia Lupaz was not the owner of the house. f. On July 29, 2013, Amelia Lupaz was forced to file a case against them in the Office of the Barangay Council in Barangay 25, Cembo, Makati City. Private Complainant evaded appearance despite several summons upon him by the Barangay to appear before its office. Attached herein is a copy of the complaint filed by Amelia Lupaz against
Henry Binag marked as Annex B.
g. Private Complainant eventually left the premises without paying his outstanding obligations to Felix Lupaz and Amelia Lupaz. h. On November 30, 2014, the Accused went to a lugawan across their residence where they saw the Private Complainant having dinner and drinking alcohol. Felix Lupaz was invited to have a drink with him but the former refused. i. Felix Lupaz then cordially reminded the Complainant of the outstanding debt representing rental fees and electricity bills which the latter has yet to satisfy. The Complainant vigorously denied the existence of his debt. Both parties stood and voices were raised against each other. Edner Gealan approached Felix and the Complainant in an attempt to prevent further altercations. j. Amelia Lupaz and Edner Gealan then took Felix Lupaz home. Amelia Lupaz thereafter padlocked the gate and prevented the latter from coming out. k. Edner Gealan, on his way home, padlocked l. Accused, through counsel, PRAYER WHEREFORE, the Accused respectfully pray that the case be remanded to the Office of the City Prosecutor for
the reception of their counter-affidavits and the completion
of the Preliminary Investigation. The accused further pray that in the meantime, the scheduled arraignment be deferred until after the City Prosecutor would have resolved the complaint after having evaluated the counter-affidavits of the accused.
The accused pray for other reliefs which may be just
and equitable. Makati City, 11 April 2016
GORDON DARIO REYES BUTED
HOCSON VIADO & BLANCO LAW OFFICES Counsel for Accused-Movant 6/F W Global Center, 30th and 9th, Bonifacio High Street Bonifacio Global City 1634 Philippines +63 2 8691317 / +63 2 553 2894 By: JUAN ORENDAIN P. BUTED Attorneys Roll No. 36417 TR No. A-2791479 / 1.08.16 / Taguig IBP (Lifetime) No. LRN-02299/ Makati MCLE Compliance No. IV-0021550 / July 31, 2013 0917-5389564 Copy Furnished
_____________________ Office of the City Prosecutor Makati ___________________________ (private complainant)