REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
PRACTICE COURT II

PEOPLE OF THE PHILIPPINES,

Petitioner,

- versus - C.A.-G.R. SP NO. 56789

(Criminal Case No. 8080)
HON. GERWIN M. ORTEGA, in
his capacity as Presiding Judge of the
Regional Trial Court, Practice Court
II, Manila City and ION PEREZ y
XIU,
Respondents.
x--------------------------------------------x

PETITION FOR CERTIORARI

Petitioner PEOPLE OF THE PHILIPPINES, through the OFFICE

OF THE SOLICITOR GENERAL (OSG), respectfully avers:

STATEMENT OF THE CASE

1. This is a Petition for Certiorari under Rule 65 of the Rules of

Court seeking to annul and set aside the Decision1 of the public respondent
Hon. Gerwim M. Ortega (Public Respondent) Presiding Judge of the
Regional Trial Court (RTC), Practice Court II, City of Manila in Criminal
Case No. 8080 entitled, “People of the Philippines vs. Ion Perez y Xiu.”

STATEMENT OF MATERIAL DATES

2. On February 15, 2020, Petitioner, through the City Prosecutor,

Practice Court II, Manila, received a copy of the assailed Decision acquitting
private respondent Ion Perez y Xiu (Private respondent) for reasonable doubt
of the crime of Parricide under Article (Art.) 246 of the Revised Penal Code
(RPC).

3. Pursuant to Section 4, Rule 65 of the Rules of Court, Petitioner

has sixty days from February 15, 2020 or until April 15, 2020, within which
to file the instant Petition.
1
Certified True Copy of the Decision is attached hereto as Annex “A.”
PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

4. Hence, the Petition is timely filed.

THE PARTIES

5. Petitioner People of the Philippines is the offended party in

Criminal Case No. 8080. It was represented in the proceedings before the
trial court by the Office of the City Prosecutor, Practice Court II, Manila. It
may now be served with orders and other processes through the OSG at No.
134 Amorsolo Street, Legaspi Village, Makati City.

6. Public respondent Hon. Gerwin M. Ortega, the Presiding Judge

of the RTC, Practice Court II, Manila, is impleaded in his official capacity,
having issued the assailed Decision. He may be served with orders and
other processes at his official station at the RTC, Practice Court II, Manila.

7. Private respondent Ion Perez y Xiu is the accused in Criminal

Case No. 8080. He may be served with summons, writs, orders and other
processes through his counsel, Atty. Lance Christopher D. Padilla, with
address, 14 Duhat Drive, Valley View Executive Village, Cainta Rizal.

STATEMENT OF THE CASE

8. This Petition arose from an Information dated November 23,

2019 filed by the Office of the City Prosecutor Practice Court II, Manila
against Private respondent for the crime of Parricide under Art. 246 of the
RPC, the accusatory portion of which reads:

That on or about the 10th day of September 2019 in the City of Manila,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then armed with a gun, did then
and there, unlawfully and feloniously shot one Viceral P. Alawit-Perez,
his legitimate wife, with the use of said gun, thereby inflicting upon the
latter gunshot wound in her head which caused her instantaneous death, to
the damage and prejudice of the heirs of said Viceral P. Alawit-Perez.

CONTRARY TO LAW.2

9. When arraigned, Private respondent pleaded “not guilty” to the

crime charged but interposes justifying circumstance of self-defense.

2
Certified True Copy of the Information docketed as Criminal Case No. 8080 is attached hereto as Annex
“B.”

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

10. Thereafter, inverted trial ensued.

11. The defense presented Private respondent and PCPL Ate Girl
Jackie Chan. After presenting their last witness, defense formally offered
their evidence and subsequently, the trial court admitted the same.

12. For the prosecution, two witnesses were likewise presented,

Ms. Berna Abugbug and Medico Legal Officer Atom Dumimo. After the
presentation of the last witness, the prosecution formally offered their
evidence which was likewise admitted by the trial court.

13. In its oral Order, Public respondent required both parties to

submit their respective memoranda after which the case is deemed submitted
for decision. Parties complied with the said Order and filed simultaneously
their respective memoranda.

14. On February 15, 2020, Public respondent promulgated the

assailed Decision acquitting Private respondent of the crime of Parricide
under Art. 246 of the RPC. The dispositive portion of the assailed Decision
reads:

WHEREFORE, Ion Perez Y. Xiu is ACQUITTED of parricide on

reasonable doubt.
The Director of the Bureau of Corrections is ordered to immediately
RELEASE petitioner from custody, unless he is being held for some other
lawful cause, and to INFORM this Court within five (5) days from receipt
of this Decision of the date petitioner was actually released from
confinement.
SO ORDERED.3

15. Thus, this Petition.

STATEMENT OF THE FACTS

16. On September 10, 2019, Private respondent and his wife,

Viceral P. Alawit-Perez (the victim) got married. Marriage reception was
conducted at the Manila Hotel, where the coupled stayed for the night.4

3
Attached as Annex “A.”
4
Decision, p. 2.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

17. The marital bond did not last long. In the same day, it was
discovered by the Private respondent that the victim was biologically a man.
Altercation between Private respondent and the victim ensued.5

18. Private respondent testified that the victim threatened him using
his own gun.6 That, he was able to get rid of the situation when the victim
dropped off the gun. That, persistent, the victim run toward the kitchen to
get a knife and went back to attack Private respondent. And that, the latter
killed the victim in self-defense using the gun dropped by the victim.7

19. After the incident, Private respondent went to his parents; that
upon advice, surrendered himself to police station. PCPL Ate Girl Jackie
Chan, the on duty officer, made a report and sent a team to investigate the
incident.

20. Ms. Berna Abugbug testified that she saw Private respondent
fleeing from the crime scene. That, when she enter the room, she saw the
victim bathing in her own blood. That, before the incident and during the
reception, she saw the couple, described the victim as “payat po, maliit lang
po siya”, while Private respondent as “muscular, quite tall around 5’6.”8

21. On the other hand, according to the post-mortem examination

conducted by Medico Legal Officer Atom E. Dumimo, the victim incurred
one gunshot in the frontal head.9

GROUND FOR THE ALLOWANCE

OF THE PETITION

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN HE ISSUED THE DECISION
ACQUITTING THE ACCUSED OF THE CRIME OF
PARRICIDE FOR PATENTLY VIOLATING THE
CONSTITUTION AND EXISTING JURISPRUDENCE

DISCUSSION

5
Id.
6
Id.; Testimony of the Private respondent on his direct examination.
7
Id.; Memorandum for the Accused, pp. 1-2, attached as Annex “C”.
8
Testimony of Ms. Berna Abugbug on her direct examination.
9
Medico Legal Certificate attached as Annex “D”.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

22. A Petition for Certiorari under Rule 65 of the Rules of Court is

anchored upon the finding that a tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack of or excess
in jurisdiction, to wit:

Section 1. Petition for certiorari. — When any tribunal,

board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and
justice may require. (Emphasized supplied)

.....

23. Further, in criminal cases, it is settled rule that a Petition for

Certiorari under Rule 65 of the Rules of Court is a proper remedy to
challenge an acquittal on the ground that the trial court committed not
merely reversible errors of judgment , but also exercised grave abuse of
discretion amounting to lack or excess of jurisdiction, or a denial of due
process, thereby rendering the assailed judgment null and void. If there is
grave abuse of discretion, granting petitioner’s prayer is not tantamount to
putting private respondent in double jeopardy.10

24. Relatively, the Supreme Court has consistently held that grave
abuse of discretion may arise when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence.11

25. In this case, Public respondent committed grave abuse of

discretion for patently violating the Constitution and the existing
jurisprudence as show in the subsequent discussions.

Public respondent patently violates the

existing jurisprudence pertaining to
instances where an accused pleads the
justifying circumstance of self-defense.
10
People v. Court of Appeals, G.R. No. 183652, February 25, 2015.
11
Pasok v. Office of the Ombudsman-Mindanao, G.R. No. 218413. June 6, 2018; San Fernando Coca-
Cola Rank-And-File Union v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 200499, October 4, 2017; Ty-
Delgado v. House of Representatives Electoral Tribunal, G.R. No. 219603. January 26, 2016; Emphasized
supplied.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

a. The burden of proof is on the Private

respondent and not on the prosecution.

26. To absolve himself of criminal liability, Private respondent

poses the justifying circumstance of self-defense.

27. Pertinently, in catena of cases, where the accused admits the

killing of the victim but invokes self-defense, it is incumbent upon him to
prove by clear and convincing evidence that he indeed acted in legitimate
defense of himself. As the burden of proof is shifted to him, he must
consequently rely on the strength of his own evidence and not on the
weakness of that of the prosecution.12

28. In the assailed Decision, Public respondent patently disregarded

this well-entrenched rule by maintaining that the prosecution failed to prove
the guilt of Private respondent beyond reasonable doubt, thus, acquitting
Private respondent of the crime of Parricide. Public respondent states in this
wise:

....

Given the peculiar circumstances of this case, the Court

finds that the prosecution was unable to establish beyond
reasonable doubt the guilt of accused. (Emphasized ours)
. . . .13

29. By disregarding the above settled and prevailing jurisprudence,

the Public respondent gravely abuse his discretion amounting to lack or
excess of jurisdiction.

b. The testimony of Private respondent is

uncorroborated by other separate
competent evidence and is of extremely
doubtful.

30. It bears stressing that the plea of self-defense cannot be

justifiably entertained where it is not only uncorroborated by any separate
competent evidence but in itself is extremely doubtful.14
12
People v. Macagaling, G.R. No. 109131-33, October 13, 1994; People v. Ansoyon, G.R. No. L-3,
January 29, 1946; People v. Lebumfacil Jr., G.R. No. L-32910, March 28, 1980; Emphasized supplied.
13
Decision, page 5.
14
Ebajan v. Court of Appeals, G.R. No. 77930-31, February 9, 1989.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

31. In this case, Public respondent anchored his findings of

unlawful of aggression on the narration of facts of Private respondent
without other separate competent corroborating evidence. Although the
defense presented PCPL Ate Girl Jackie Chan, her testimony does not
corroborate the testimony of the Private respondent, as the former testified
as to what transpired after the incident of killing. Simply, PCPL Ate Girl
Jackie Chan has no personal knowledge of what transpired inside the hotel
room thus, cannot corroborate the claim of private respondent of unlawful
aggression.

32. Additionally, the narration of facts of Private respondent is

extremely doubtful.

33. Here, it was undisputed that heated argument had transpired

between the Private respondent and the victim. That, after such heated
argument, the victim allegedly threatened Private respondent with a gun in
order to consummate their marriage. This is extremely doubtful. The
Decision is bereft of any facts which will show how the victim got hold of
the gun. It is extreme doubtful, that the during the heated argument, Private
respondent did not sense any impending danger, and from unknown reason,
the victim was able to get hold of Private respondent’s own gun.

34. To iterate, having admitted the fact of the killing, the burden of
proof lies with the Private respondent to prove each and every element of
self-defense by clear and convincing evidence.15 By clear and convincing
evidence requires that the testimony of Private respondent must be
corroborated by other separate competent evidence and not in itself
extremely doubtful.

35. Therefore, being built on self-serving testimony and failing to

show by clear and convincing evidence that there exists unlawful aggression,
being the indispensable element, Private respondent’s claim of self-defense
must necessarily fail. For even if the evidence of prosecution were weak, it
could not be disbelieved after the accused (Private respondent) himself
admitted the killing.16

36. Even assuming that there may be unlawful aggression, the

Decision must still fail because Public respondent patently violates the
Constitution by denying Petitioner of its constitutional right to due process.
15
Supra, note 6.
16
People v. Padiernos, G.R. No. L-37284, February 27, 1976 citing People v. Llamera, G.R. No. L-21604-
5-6, May 25, 1973.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

Public respondent patently violates the

Constitution by denying Petitioner of its
constitutional right to due process.

37. Be it remembered, due process requires that, in reaching a

decision, a tribunal must consider the entire evidence presented, regardless
of the party who offered the same. It cannot simply acknowledge that of one
party and turn a blind eye to that of the other. 17

38. Here, public respondent failed to consider the entire evidence

specially those presented by the prosecution thus denying Petitioner of its
rights to due process.

39. The prosecution presented two witnesses. First, Ms. Abugbug

which, in her testimony, described the victim as “payat po, maliit lang po
siya”, while Private respondent as “muscular, quite tall around 5’6.”18The
glaring disparity between the physical condition of the victim and Private
respondent should have cast doubt on the claim of self-defense by Private
respondent. Second, Medico Legal Officer Dumimo testified that the victim
suffered a gunshot in the frontal head. Although the victim incurred only a
gunshot, but considering the location where the bullet landed, this fact
militates against the claim of self-defense.

40. All told, for failing to consider the evidence presented by the
prosecution, Public respondent patently violates the right of Petitioner to due
process.

PRAYER

WHEREFORE, in light of the foregoing, Petitioner respectfully

prays that the Honorable Court:

1. GIVE DUE COURSE to this Petition;

2. ANNUL and SET ASIDE the Public respondent’s Decision; and

17
People v. Court of Appeals, G.R. No. 183652, February 25, 2015.
18
Supra, note 8.

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

3. RENDER a new Decision convicting the Private respondent of the

crime of Parricide as defined and penalized under Art. 246 of the
RPC, as amended. With costs against Private respondent.

Other reliefs, just and equitable under the premises, are likewise
prayed for.

Makati City for Manila, February 21, 2020.

THE SOLICITOR GENERAL

Office of the Solicitor General
Practice Court II
Counsel for the Petitioner

Copy furnished:

HON. PRESIDING JUDGE [Personal Service]

RTC – Practice Court II
Manila

ATTY. LANCE CHRISTOPER D. PADILLA [Personal Service]

Counsel for Private Respondent
14 Duhat Drive, Valley View Executive Village
Cainta Rizal

COURT OF APPEALS [Personal Filing]

Practice Court II
Manila

VERIFICATION AND CERTIFICATION OF

NON-FORUM SHOPPING

I, the Solicitor General, of legal age, after having duly sworn in

accordance with law, do hereby depose and state:

1. That, I am the Solicitor General of the Office of the

Solicitor General of the Philippines;

2. That, I personally prepare this Petition;

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

3. That, I have read and understood the allegations

therein contained and the same are true and correct
and/or based on authentic records;

4. That, I further certify that I have not commenced any

other action or proceeding involving the same issue
and same parties before this Honorable Court, or any
Division thereof, the Supreme Court, the Court of
Appeals, the Regional Trial Court, or any tribunal or
agency. To the best of my knowledge, there are no
proceedings raising the same issues of fact or of law
involving the same parties as those raised in the
instant Petition before this Honorable Court, or any of
its divisions or before any other Court, tribunal or
agency, such that if I should hereafter learn that a
similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of
Appeals, or any tribunal or agency, I undertake to
inform this Honorable Court of the pendency of such
action within five days from acquisition of such
knowledge.

SUBSCRIBED AND SWORN TO, before me this 22th day of

February 2020, in Makati City, by the Solicitor General, personally
known to me, who is the same person who personally signed before
me the foregoing document and acknowledged that he executed the
same.

Notary Public
Notary Public for Makati
Practice Court II
Commission Serial No. 1234
Until December 31, 2022
Roll of Attorney No. 78910
Office Address Lot No. 456
Legaspi Village Makati City
Roll of Attorney No. 78910
IBP NO. 141516

Doc No. 122

Page No. 142
Book No. 143
Series of 2020

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PETITION FOR CERTIORARI
C.A-G.R. SP No. 56789
(Criminal Case No. 8080)
People v. Hon. Germin M. Ortega and Ion Perez y Xiu
x--------------------------------------------------------------------------------x

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