SECRETARY DR.

*****
EXPEDIENTE : *****
NOTEBOOK : MAIN
SUMMARY I FORMALIZE AND SUPPORT
MY APPEAL AGAINST THE
JUDGMENT OF THE COURT OF
APPEALS.

MR. PRESIDENT OF THE FIRST CRIMINAL COURT OF APPEALS OF

PUNO.

*******,
DEFENSE COUNSEL FOR THE DEFENDANT
*******,
IN THE TRIAL FOR AGGRAVATED ROBBERY
AND OTHER; I HEREBY INFORM YOU OF THE
FOLLOWING:

I. PETITION (-TO THE APPELLATE COURT-).

WITHIN THE TERM ESTABLISHED BY ARTICLE

414º.1.A OF THE CODE OF CRIMINAL PROCEDURE, WHICH PREVAILS OVER
THE TERM ESTABLISHED BY ARTICLE 405º.2 OF THE SAME REGULATORY
BODY, I FORMALIZE AND SUPPORT THE APPEAL FILED DURING THE
READING OF THE SENTENCE ISSUED BY THE CHAMBER OF YOUR
PRESIDENCY, REQUESTING YOU, MR. PRESIDENT, TO GRANT THE APPEAL
AND ORDER THE CASE TO BE SENT TO THE CRIMINAL CHAMBER OF THE
SUPREME COURT. I BASE MY REQUEST ON THE ARGUMENTS OUTLINED
BELOW:
 II. THE CONTESTED OBJECT (-OBJECTIVE
PREMISE OF THE PRESENT APPEAL-).

I HEREBY FILE AN APPEAL IN CASSATION

AGAINST THE JUDGMENT OF THE HEARING SENTENCE NO. 35-2013
CONTAINED IN RESOLUTION NO. 06 OF AUGUST 19, 2013, WHICH,
CONFIRMING THE FIRST INSTANCE SENTENCE, SENTENCED MY CLIENT,
*******,
AS CO-PERPETRATOR OF THE CRIME OF AGGRAVATED ROBBERY TO
*******
THE DETRIMENT OF AND AS CO-PERPETRATOR OF THE CRIME OF
AGGRAVATED ROBBERY WITH SUBSEQUENT DEATH TO THE DETRIMENT
OF *******, TO 24 YEARS OF IMPRISONMENT, AS WELL AS THE REPARATORY
PAYMENT OF S/. 6,000.00 NUEVOS SOLES IN FAVOR OF THE AGGRIEVED
PARTY ******* AND OF S/. 50,000.00 NUEVOS SOLES IN FAVOR OF THE LEGAL
*******,
HEIRS OF THE AGGRIEVED PARTY WITH THE REST CONTAINED
THEREIN.

IN ACCORDANCE WITH ARTICLE 427º OF THE

CODE OF CRIMINAL PROCEDURE, IT IS UNDERSTOOD THAT THE PRESENT
APPEAL IS DIRECTED AGAINST A FINAL SENTENCE ISSUED ON APPEAL
BY A SUPERIOR CRIMINAL COURT (427º.1 CPP), INASMUCH AS THE MOST
SERIOUS CRIME REFERRED TO IN THE PROSECUTOR'S WRITTEN
ACCUSATION HAS A PRISON SENTENCE OF MORE THAN 6 YEARS
(427º.2.BCPP) AND THE AMOUNT FIXED IN THE SENTENCE, FOR CIVIL
LIABILITY, EXCEEDS 50 URP (427º.3CPP).

NEVERTHELESS, DESPITE THE FACT THAT THE

CASE MEETS THE ABOVE-MENTIONED PROCEDURAL REQUIREMENTS, I
CONSIDER THAT THE INTERVENTION OF THE SUPREME COURT IS
NECESSARY FOR THE DEVELOPMENT OF THE JURISPRUDENTIAL
DOCTRINE (427º.4CPP); FOR WHICH, AS A PETITIONER, I WILL INTRODUCE,
IN THE FIFTH SECTION OF THIS BRIEF, THE DUE JUSTIFICATION (430º.3
CPP).
 III. MOTIVES OR GROUNDS ON WHICH THE
PRESENT EXTRAORDINARY APPEAL IS
BASED (-VICES AND GRIEVANCES CHARGED
IN THE PRESENT APPEAL-).

THE REASONS FOR WHICH I AM FILING THIS

CASSATION APPEAL AGAINST THE JUDGMENT OF HEARING NO. 35-2013,
SON: A) FOR VIOLATION OF CONSTITUTIONAL PRECEPTS, IN ITS
MODALITY OF LACK OF SUFFICIENT MOTIVATION AND ABSENCE OF
LOGIC IN THE MOTIVATION (ARTICLE 429º CLAUSES 1 AND 4 OF THE
CRIMINAL PROCEDURAL CODE); B) FOR INFRINGEMENT OF MATERIAL
LAW, IN ITS MODALITY OF LACK OF APPLICATION OF THE CRIMINAL
LAW (ARTICLE 429º PARAGRAPH 3) OF THE CODE OF CRIMINAL
PROCEDURE) AND; C) FOR INFRINGEMENT OF JURISPRUDENTIAL
DOCTRINE.

I WILL NOW EXPLAIN, SEPARATELY, THE

GROUNDS INVOKED, AS REQUIRED BY ARTICLE 430, PARAGRAPH 1) OF
THE CODE OF CRIMINAL PROCEDURE.

IV. ASPECTS OF THE JUDGMENT THAT ARE

CHALLENGED IN THE PRESENT APPEAL (-
DOCTRINAL AND LEGAL GROUNDS OF THE
PRESENT APPEAL-).

BY WAY OF PROLEGOMENON, IT IS NECESSARY

TO POINT OUT THAT THE PURPOSE OF THE COURTS OF FIRST AND
SECOND INSTANCE WAS TO FIX, WITH CRITERIA OF RATIONALITY AND
PROPORTIONALITY, THE PENALTY AND CIVIL REPARATION THAT WOULD
WEIGH ON MY CLIENT, SINCE ONLY THE FACTS WERE ACCEPTED BY HIM,
BUT NOT THE PENALTY OR CIVIL REPARATION.THIS IS DUE TO THE FACT
THAT ONLY THE FACTS WERE ACCEPTED BY HIM, BUT NEITHER THE
PENALTY NOR THE CIVIL REPARATION, WHEN HE SUBMITTED TO THE
ANTICIPATED CONCLUSION OF THE ORAL TRIAL (PARTIAL
CONFORMITY); WHILE HIS CO-ACCUSED, JORGE LUIS DURÁN SANTOS,
SUBMITTED TO THE SPECIAL PROCESS OF ANTICIPATED TERMINATION
OF THE PROCESS, BEING SENTENCED IN ADVANCE TO 17 YEARS AND 08
MONTHS OF IMPRISONMENT AND TO THE PAYMENT OF S/. 26,000.00
NUEVOS SOLES FOR CIVIL REPARATIONS (S/. 20,000.00 NUEVOS SOLES IN
*******
FAVOR OF THE LEGAL HEIRS OF THE VICTIM AND S/. 6,000.00
*******)
NUEVOS SOLES IN FAVOR OF THE AGGRIEVED PARTY . THEREFORE,
THE APPELLATE COURT, DESPITE BEING LIMITED TO PRONOUNCING ON
THE PENALTY AND CIVIL REPARATION THAT WOULD WEIGH ON MY
DEFENDANT, INCURRED IN THE FOLLOWING NORMATIVE INFRACTIONS:

FIRST.- THE RULING VIOLATES CONSTITUTIONAL

PRECEPTS- THIS IS SO BECAUSE:

A) LACKS SUFFICIENT MOTIVATION.THE RIGHT

TO THE MOTIVATION OF JUDICIAL DECISIONS HAS BEEN FULLY
DEVELOPED BY THE CONSTITUTIONAL COURT IN THE FOLLOWING
TERMS: "IT MUST BE SPECIFIED, IN THE FIRST PLACE, THAT THE
REQUIREMENT THAT JUDICIAL DECISIONS BE REASONED IN THE TERMS OF
ARTICLE 139º PARAGRAPH 5) OF THE CONSTITUTION, GUARANTEES THAT
JUDGES, REGARDLESS OF THE INSTANCE IN WHICH THEY ARE, MUST
CLEARLY EXPRESS THE ARGUMENTS THAT HAVE LED THEM TO THE
SOLUTION OF THE CONTROVERSY OR LEGAL UNCERTAINTY, ENSURING THAT
THE EXERCISE OF THE RIGHT TO A FAIR TRIAL IS NOT ONLY A RIGHT TO A
FAIR TRIAL, BUT ALSO A RIGHT TO A FAIR TRIAL, WHICH IS A RIGHT TO A
FAIR TRIAL.THIS ENSURES THAT THE EXERCISE OF THE JURISDICTIONAL
FUNCTION IS CARRIED OUT SUBJECT TO THE CONSTITUTION AND THE LAW
ISSUED IN ACCORDANCE WITH IT. AS THIS COLLEGIATE HAS SPECIFIED IN
REITERATED JURISPRUDENCE, THE RIGHT TO THE MOTIVATION OF THE
JUDICIAL DECISIONS DOES NOT GUARANTEE A DETERMINED EXTENSION OF
THE MOTIVATION, THEREFORE ITS CONSTITUTIONAL CONTENT IS
RESPECTED, PRIMA FACIE, AS LONG AS THERE IS: (A) LEGAL GROUNDS,
WHICH DOES NOT IMPLY THE MERE MENTION OF THE NORMS TO BE
APPLIED TO THE CASE, BUT THE EXPLANATION AND JUSTIFICATION OF WHY
SUCH CASE IS OR IS NOT WITHIN THE ASSUMPTIONS CONTEMPLATED BY
SUCH NORMS; (B)CONGRUENCE BETWEEN WHAT IS REQUESTED AND WHAT
IS RESOLVED, WHICH IMPLIES THE MANIFESTATION OF THE ARGUMENTS
THAT WILL EXPRESS THE DECISION OF THE COURT.B) CONGRUENCE
BETWEEN WHAT WAS REQUESTED AND WHAT WAS RESOLVED, WHICH
IMPLIES THE EXPRESSION OFTHE ARGUMENTS THAT WILL EXPRESS THE
CONFORMITY BETWEEN THE PRONOUNCEMENTS OF THE JUDGMENT AND
THE CLAIMS FORMULATED BY THE PARTIES; AND C) THAT IN ITSELF
EXPRESSES A SUFFICIENT JUSTIFICATION OF THE DECISION ADOPTED,
EVEN IF IT IS BRIEF OR CONCISE, OR IF THE ASSUMPTION OF MOTIVATION
BY REFERENCE IS PRESENT"1. (EMPHASIS AND UNDERLINING ADDED)

CONTRARIO SENSU, THERE WILL BE A LACK OF

SUFFICIENT MOTIVATION WHEN THE NORMS ARE CITED WITHOUT
MAKING ANY JUDGMENT OF SUBSUMPTION OR ANALYSIS, WHEN THE
JUDGE DOES NOT PRONOUNCE ON THE CLAIMS OF THE PARTIES, AND
WHEN HE DOES NOT CLEARLY EXPLAIN WHY HE HAS RULED IN A
CERTAIN SENSE.

IN THE CASE AT HAND, THE APPELLATE COURT

FAILED TO RULE ON SEVERAL POINTS AT ISSUE. IN FACT, IN OUR
GROUNDS FOR THE APPEAL (PAGES 197 TO 205 OF THE APPEAL FILE)
SPECIFIED BY ANOTHER BRIEF (PAGES 216 TO 223 OF THE APPEAL FILE),
WE REQUEST THE SUPERIOR COURT TO REEXAMINE THE APPEALED
SENTENCE AND REVOKE IT IN ORDER TO IMPOSE A MINIMUM PENALTY

1
JUDGMENT RENDERED IN EXP. NUM. 4348-2005-AA/TC, GÓMEZ MACAHUACH CASE.
ON MY CLIENT IN HIS CONDITION OF SECONDARY ACCOMPLICE. WE
ARGUE THIS CLAIM ON THE FOLLOWING POINTS, AMONG OTHERS: A)
THE A QUO DID NOT TAKE INTO ACCOUNT THE PRINCIPLES OF
PROPORTIONALITY AND REASONABLENESS IN THE IMPOSITION OF THE
PENALTY AND CIVIL REPARATION, SINCE MY CLIENT HAD A MINIMAL
PARTICIPATION IN THE PUNISHABLE ACT B) THE A QUO DID NOT TAKE
INTO ACCOUNT THE MITIGATING FACTOR ESTABLISHED IN ARTICLE 20,
PARAGRAPH 1) OF THE CRIMINAL CODE, DESPITE THE FACT THAT ALL
THE PARTICIPANTS, THE ACCUSED AND THE AGGRIEVED, WERE IN A
STATE OF INEBRIATION.ARTICLE 20(1) OF THE CRIMINAL CODE, DESPITE
THE FACT THAT ALL THE PARTICIPANTS, BOTH ACCUSED AND INJURED,
WERE IN A STATE OF DRUNKENNESS, C) WITH RESPECT TO THE
*******,
AGGRAVATED ROBBERY TO THE DETRIMENT OF THE A QUO HAS
NOT CONSIDERED THE LACK OF ACCREDITATION OF THE PRE-EXISTENCE
OF THE PROPERTY OF THE VICTIM, AND THE FACT THAT THE ACCUSED
WAS NOT IN A STATE OF DRUNKENNESS.C) REGARDING THE
AGGRAVATED ROBBERY TO THE DETRIMENT OF , THE A QUO HAS NOT
CONSIDERED THE LACK OF PROOF OF THE PRE-EXISTENCE OF THE
ALLEGEDLY STOLEN MONEY AND, D) THE A QUO DID NOT CONSIDER THE
ECONOMIC POSSIBILITY OF MY CLIENT TO COVER THE EXORBITANT
AMOUNT FOR CIVIL REPARATION, ESPECIALLY SINCE IN ITS SENTENCE IT
DOES NOT EXPRESS WHETHER THE TWO SENTENCED PARTIES OR ONLY
MY CLIENT SHOULD PAY THE CIVIL REPARATION.

HOWEVER, IN THE APPEALED JUDGMENT, THERE

IS NO PRONOUNCEMENT ON THESE POINTS, AND IF THERE IS ONE, IT IS
ONLY A TANGENTIAL PRONOUNCEMENT. LET'S SEE.

THE APPELLATE COURT HAS MADE NO

PRONOUNCEMENT WHATSOEVER ON THE APPLICATION OF THE
PRINCIPLES OF PROPORTIONALITY AND REASONABLENESS REQUESTED,
DESPITE THE FACT THAT THIS WAS REPEATED MANY TIMES BY THE
DEFENSE. IN VAIN DID WE ARGUE THAT ARTICLE VIII OF THE
PRELIMINARY TITLE OF THE PENAL CODE ESTABLISHES THAT "THE
PENALTY CANNOT EXCEED THE RESPONSIBILITY FOR THE ACT", IN VAIN
DID WE ALSO MENTION THAT THE PLENARY AGREEMENT NO. 01-2000 IN
ITS FOURTH AGREEMENT STATES THAT "THE CRITERIA OF
PROPORTIONALITY BETWEEN THE CRIME AND THE PENALTY THAT THE
JUDGES MAY USE ARE ENUNCIATIVELY (...) F) THE DEGREE OF CRIMINAL
INTERVENTION". WE REQUESTED THAT THE SENTENCE AND CIVIL
REPARATIONS BE REDUCED IN FAVOR OF MY CLIENT BECAUSE,
ACCORDING TO THE FACTS, IT WAS JORGE LUIS DURAN SANTOS WHO
STABBED THE VICTIMS, AND HE EVEN ACCEPTED THAT HE HAD A
GREATER PARTICIPATION IN THE CRIMINAL ACTS; THEREFORE, MY
CLIENT HAD A MINIMAL AND IRRELEVANT PARTICIPATION. THE RULING
IN QUESTION DOES NOT RULE ON THE PRINCIPLE OF REASONABLENESS
EITHER, DESPITE THE FACT THAT WE HELD "THAT IN ORDER TO APPLY
THE SENTENCE, THE REALITY OF THE COUNTRY'S PRISONS, THE
NEGATIVE IMPACT OF THE PRISON ON THE PERSON AND THE
RESOCIALIZING PURPOSE OF THE SENTENCE MUST BE TAKEN INTO
ACCOUNT.THE SENTENCE SHOULD BE APPLIED TAKING INTO ACCOUNT
THE PRISON REALITY OF THE COUNTRY, THE NEGATIVE IMPACT OF
PRISON ON THE PERSON AND THE RESOCIALIZING PURPOSE OF THE
SENTENCE"2, ESPECIALLY SINCE MY CLIENT IS 22 YEARS OLD AND A
PROLONGED STAY IN PRISON WILL BE ADVERSE TO HIS
RESOCIALIZATION.

REGARDING THE PRONOUNCEMENT OF THE

EXTENUATING CIRCUMSTANCE ESTABLISHED IN PARAGRAPH 1) OF
ARTICLE 20 OF THE CRIMINAL CODE, THE APPELLATE COURT SAID IN
THE APPEALED JUDGMENT: "THE DRUNKENNESS ARGUED BY THE
2
EXP. NUM. 99-396-NORTH CONE.
DEFENSE OF THE SENTENCED PERSON, FOR THE EFFECTS OF THE
MITIGATION OF THE TIME OF THE SENTENCE IMPOSED, DESPITE THE
INEXISTENCE OF OBJECTIVE PROOF, WE CONSIDER THAT IT IS IMMERSED IN
THE OSTENSIBLE AND REASONABLE REDUCTION OF THE TIME OF SENTENCE
IMPOSED IN THE APPEALED SENTENCE". ON THIS ILLOGICAL BASIS, IT
REJECTED THE REQUESTED MITIGATION, THUS TRANSGRESSING THE
SUBSTANTIVE LAW. IN THE CASE OF LACK OF LOGIC IN THE REASONING
AND INFRINGEMENT OF MATERIAL LAW, WE WILL GO INTO THIS ISSUE IN
MORE DETAIL.

3
AS TO THE LACK OF ACCREDITATION OF THE
PRE-EXISTENCE OF THE MONETARY PROPERTY ALLEGEDLY STOLEN
FROM THE AGGRIEVED PARTY *******, THE APPELLATE COURT
MENTIONED THAT "THE PROOF OF THE EXISTENCE AND VALUATION OF
SAID DAMAGES IS BASED EXCLUSIVELY ON THE CRITERION OF FAIR
VALUATION, SINCE IT DOES NOT REQUIRE ABSOLUTE AND FULL PROOF
OF THE EXISTENCE AND THE AMOUNTS OF SAID DAMAGES CAUSED, BUT
IN OBSERVANCE OF ARTICLE 1332 OF THE CODE OF CIVIL
PROCEDURE.THE COURT OF APPEAL MENTIONED THAT "THE PROOF OF
THE EXISTENCE AND VALUATION OF SAID DAMAGES IS BASED
EXCLUSIVELY ON THE CRITERION OF EQUITABLE VALUATION, SINCE IT
DOES NOT REQUIRE ABSOLUTE AND FULL PROOF OF THE EXISTENCE
AND THE AMOUNTS OF SAID DAMAGES CAUSED, BUT IN OBSERVANCE
OF ARTICLE 1332 OF THE CIVIL CODE, THE AMOUNTS COMPENSATED FOR
THE DAMAGES CAUSED ARE BASED EXCLUSIVELY ON THE CRITERION OF
EQUITABLE VALUATION.IN THIS WAY, IT DOES NOT COMPLY WITH THE
UNIFORM JURISPRUDENCE OF THE SUPREME COURT WHICH STATES
THAT "WITH RESPECT TO THE CRIME OF AGGRAVATED ROBBERY, THE
AGGRIEVED PARTIES HAVE NOT BEEN ABLE TO PROVE THE PRE-
EXISTENCE OF THE STOLEN PROPERTY AT THE TIME OF THE FACTS,
3
EXP. NUMBER: R. N. Nº 3290 -2001-HUANCAYO, CASE: ORDAYA GUERRERO and CANCHANYA ALIAGA.
SINCE IN THIS TYPE OF CRIME, IT IS NOT POSSIBLE TO PROVE THE PRE-
EXISTENCE OF THE STOLEN PROPERTY AT THE TIME OF THE FACTS,
SINCE IN THE CASE OF AGGRAVATED ROBBERY, THE AGGRIEVED
PARTIES HAVE NOT BEEN ABLE TO PROVE THE PRE-EXISTENCE OF THE
STOLEN PROPERTY AT THE TIME OF THE FACTS.IN THIS TYPE OF CRIME,
THE MERE ALLEGATION IS NOT ENOUGH, BUT IT MUST BE
CORROBORATED WITH INDUBITABLE EVIDENCE, IN ANY CASE THERE IS
NO CERTAINTY THAT THE DEFENDANTS HAVE STOLEN THE MONEY".
THIS RULING WAS AND IS APPLICABLE TO THE PRESENT CASE, EVEN
WHEN MY CLIENT HAS TAKEN ADVANTAGE OF THE ANTICIPATED
CONCLUSION OF THE ORAL TRIAL, BECAUSE THE ACKNOWLEDGMENT OF
THE FACTS CANNOT HAVE ANY PROBATIVE VALUE "IF IT IS NOT
ACCOMPANIED BY ANOTHER ELEMENT OF JUDGMENT" 4, IN THE SAME
SENSE IS MANIFESTED IN ARTICLE 160°.1.A OF THE CODE OF CRIMINAL
PROCEDURE, WHICH STATES THAT THE CONFESSION WILL ONLY HAVE
PROBATIVE VALUE WHEN IT IS DULY CORROBORATED BY ANOTHER OR
OTHER ELEMENTS OF CONVICTION.

FINALLY, THE APPELLATE COURT, AWARE OF

THE AGE OF MY CLIENT AND THEREFORE OF THE LACK OF ECONOMIC
RESOURCES FROM WHICH HE SUFFERS, DID NOT PRONOUNCE, NOT EVEN
BRIEFLY, ON THE ECONOMIC POSSIBILITIES OF MY DEFENDANT TO
COVER THE EXORBITANT AMOUNT FOR CIVIL REPARATIONS. THE MOST
UNPRECEDENTED THING IS THAT IT DID NOT MENTION, AS DID THE
COURT OF FIRST INSTANCE, WHETHER THE TWO SENTENCED PARTIES (IN
SUCCESSION) SHOULD JOINTLY AND SEVERALLY PAY THE CIVIL
REPARATIONS OR ONLY MY CLIENT. FROM A CAREFUL READING OF
BOTH SENTENCES, IT CAN BE INFERRED THAT ONLY MY CLIENT MUST

4
FERRAJOLI, LUIGI. LAW AND REASON OF PENAL GUARANTY". FIRST EDITION, EDITORIAL TROTTA, MADRID,
1995. PAGES. 609, 610 Y 612.
PAY IT. THE LATTER ISSUE WILL BE ADDRESSED IN THE CASE OF NON-
OBSERVANCE OF THE JURISPRUDENTIAL DOCTRINE.

FROM THE FOREGOING, THERE IS A CLEAR LACK

OF MOTIVATION IN THAT THE APPELLATE COURT DID NOT RULE ON ALL
THE POINTS AT ISSUE IN THE DEBATE. THE REASONING IS ALSO
DEFICIENT IN SOME POINTS, THOSE EXPRESSLY INDICATED ABOVE.

B) THERE IS AN ABSENCE OF LOGIC IN THE

MOTIVATION- ILLOGICALITY IN THE MOTIVATION IS A KIND OF GENRE
THAT INCLUDES THE NOTORIOUS ABSENCE OF MOTIVATION,
INCOMPLETE MOTIVATION, INCONGRUENT OR OBSCURE MOTIVATION,
OR THAT VIOLATES THE RULES OF LOGIC, SCIENCE OR EXPERIENCE 5.
THEREFORE, PARAGRAPH 4) OF ARTICLE 429 OF THE NEW CRIMINAL
PROCEDURE CODE SPECIFIES AS AN AUTONOMOUS GROUND FOR
CASSATION: "IF THE SENTENCE OR ORDER HAS BEEN ISSUED WITH A LACK
OR MANIFEST ILLOGICALITY OF THE REASONING". THIS GROUND, AS IS
NATURAL, HAS ITS ORIGIN IN THE MOTIVATION OF THE JUDICIAL
DECISIONS REQUIRED BY THE CONSTITUTION IN ITS ARTICLE 139º
PARAGRAPH 5; HENCE, AS A CONSTITUTIONAL CASSATION, WE
DENOUNCE THE ABSENCE OF LOGIC IN THE MOTIVATION.

SPECIFICALLY, WE MUST UNDERSTAND

ILLOGICALITY (ABSENCE OF LOGIC), ACCORDING TO ITS ITALIAN
SOURCE, AS THE EXISTENCE OF LOGICAL FLAWS IN THE REASONING OF
THE RULING, WHICH MAKE IT UNREASONABLE6. THE ABSURD CONTENTS
THAT APPEAR IN THE SENTENCE, IN GOOD FAITH, ARE THE ABSURD
CONTENTS THAT APPEAR IN THE SENTENCE. LET'S ANALYZE.

THE FIRST ILLOGICALITY OF THE REASONING

LIES IN THE ASSESSMENT OF THE CONSEQUENCES GENERATED BY THE
5
CASE NUM. 09-2010-CUSCO DATED OCTOBER 13, 2010.
6
CASE NUM. 09-2010-CUSCO DATED OCTOBER 13, 2010.
ANTICIPATED CONCLUSION OF THE ORAL TRIAL. IN FACT, IN THE
JUDGMENT OF THE HEARING IT IS RECOGNIZED THAT "THE CONFORMITY
JUDGMENT..., WILL BE ISSUED ACCEPTING THE TERMS OF THE AGREEMENT.
NEVERTHELESS, IF FROM THE DESCRIPTION OF THE ACCEPTED FACT, THE
JUDGE CONSIDERS THAT IT DOES NOT CONSTITUTE A CRIME OR IT IS
EVIDENT THAT THERE IS ANY CAUSE THAT EXEMPTS OR ATTENUATES THE
CRIMINAL LIABILITY, HE WILL ISSUE A SENTENCE IN THE APPROPRIATE
TERMS"; HOWEVER, WHEN ANALYZING OUR POSITION (TO PUNISH ******* IN
ITS CONDITION OF SECONDARY ACCOMPLICE), THE SUPERIOR COURT
EMPHASIZES THE FACT THAT MY CLIENT ACCEPTED THE ACCUSATION
AND IN IT IT APPEARS THAT HE HAS BEEN ACCUSED AS A CO-AUTHOR OF
THE CRIMINAL OFFENSES AND NOT AS AN ACCOMPLICE OF THE
CRIMINAL OFFENSES.HOWEVER, WHEN ANALYZING OUR POSITION (TO
PUNISH AS A SECONDARY ACCOMPLICE), THE SUPERIOR COURT
EMPHASIZES THE FACT THAT MY CLIENT ACCEPTED THE INDICTMENT
AND IN IT IT APPEARS THAT HE HAS BEEN ACCUSED AS CO-AUTHOR OF
THE CRIMINAL OFFENSES AND NOT AS A SECONDARY ACCOMPLICE,
NOTING THAT THE INDICTMENT IS BINDING IN ALL ITS TERMS.THE
PROSECUTOR'S ACCUSATION IS BINDING IN ALL ITS ASPECTS WHEN
THERE IS CONFORMITY OF THE ACCUSED ON THE FACTS, THUS VETOING
THE PRONOUNCEMENT ON THE LEGAL QUALIFICATION OF THE FACTS
THAT SHOULD HAVE BEEN MADE, ESPECIALLY SINCE DURING THE
PREPARATORY INVESTIGATION THE PROSECUTOR CHANGED THE
TYPIFICATION OF THE FACTS MANY TIMES, FIRST HE TYPIFIED THE
FACTS AS "CRIMINAL" AND THEN AS "SECONDARY ACCOMPLICE", AND
THEN AS "CO-PERPETRATOR".THE SAME HAPPENED WITH THE
CLASSIFICATION OF THE SECOND CRIME, FIRST IT WAS AGGRAVATED
ROBBERY AND THEN AGGRAVATED ROBBERY. THEREFORE, IT IS CLEAR
THAT THE APPELLATE COURT SHOULD HAVE INTERVENED BY
PRONOUNCING ON THE LEGAL QUALIFICATION OF THE FACTS BEYOND
PARTIAL CONFORMITY, IN ITS CAPACITY AS THE JUDGE OF THE
JUDGMENT OF TYPICALITY, BUT IT DID NOT DO SO.

THE SECOND ILLOGICALITY HAS TO DO WITH

THE ASSESSMENT OF THE REQUESTED PENAL MITIGATION, LET US SEE.
WHEN THE APPELLATE COURT ANALYZES OUR REQUEST FOR A
REDUCTION OF THE SENTENCE DUE TO THE MINIMAL PARTICIPATION OF
MY CLIENT AND DUE TO THE EXONERATING CIRCUMSTANCE OF
DRUNKENNESS, IT SAYS THAT THE SENTENCE IMPOSED BY THE A QUO "IS
VERY LENIENT" AND THAT IN ITS OPINION, THERE IS NO CAUSE TO
EXEMPT FROM CRIMINAL LIABILITY BECAUSE, IN ANY CASE, "THE
DRUNKENNESS ARGUED BY THE DEFENSE OF THE DEFENDANT, FOR THE
PURPOSES OF THE EXONERATING CIRCUMSTANCE OF DRUNKENNESS,
DESPITE THE LACK OF OBJECTIVE EVIDENCE, WE CONSIDER THAT IT IS
IMMERSED IN THE OSTENSIBLE AND REASONABLE AND REASONABLE
EXONERATING CIRCUMSTANCE OF DRUNKENNESS. IN ANY CASE, "THE
DRUNKENNESS ARGUED BY THE DEFENSE OF THE DEFENDANT, FOR THE
EFFECTS OF THE MITIGATION OF THE TIME OF THE SENTENCE IMPOSED,
DESPITE THE INEXISTENCE OF OBJECTIVE EVIDENCE, WE CONSIDER THAT
IT IS IMMERSED IN THE OSTENSIBLE AND REASONABLE REDUCTION OF THE
TIME OF SENTENCE IMPOSED IN THE APPEALED SENTENCE....". THIS
REASONING IS TOTALLY OUT OF LINE WITH REALITY BECAUSE OF THE
FOLLOWING: IN THE PROSECUTION'S ACCUSATION IT APPEARS THAT ALL
THE PARTICIPANTS (INJURED PARTIES AND DEFENDANTS) WERE UNDER
THE INFLUENCE OF ALCOHOL; MOREOVER, ACCORDING TO THE
ACCUSATION, MY CLIENT WAS DRINKING FROM THE AFTERNOON OF
MAY 25 UNTIL THE EARLY HOURS OF THE MORNING OF MAY 26, 2012;
NOW, UPON MY CLIENT'S ACCEPTANCE OF THE FACTS NARRATED BY
THE PROSECUTION, IT IS CONSIDERED PROVEN THAT THEY WERE
DRUNK, REGARDLESS OF WHETHER OR NOT THERE IS OBJECTIVE
EVIDENCE ON THE MATTER; ON THE OTHER HAND, THE APPELLATE
COURT ASSUMES THAT THE A QUO CONSIDERED THE EXONERATING
CIRCUMSTANCE OF ARTICLE 20, PARAGRAPH 1) OF THE CRIMINAL CODE
BECAUSE THE SENTENCE IMPOSED IN THE CRIMINAL CODE WAS NOT IN
ACCORDANCE WITH THE LAW, BUT RATHER BECAUSE THE SENTENCE
IMPOSED IN ARTICLE 20, PARAGRAPH 2) OF THE CRIMINAL CODE WAS
NOT IN ACCORDANCE WITH THE LAW. THIS ASSUMPTION HAS NO BASIS,
OF COURSE, BECAUSE IF WE REVIEW THE FIRST INSTANCE SENTENCE,
THE ARITHMETIC OPERATION TO REDUCE THE SENTENCE (BY
CONFESSION AND SUBMISSION TO THE ANTICIPATED CONCLUSION) IS
CARRIED OUT THERE, RESULTING IN THE SENTENCE BEING " VERY
LENIENT", WITH THE RESULT THAT THE SENTENCE WAS REDUCED TO "VERY
LENIENT" .THEREFORE, AT NO TIME DID THE COURT A QUO CONSIDER
THE STATE OF DRUNKENNESS OF THE INTERVENING PARTIES TO
MITIGATE THE SENTENCE, MAKING THE ASSUMPTION OF THE
APPELLATE COURT UNFOUNDED.

BY FAILING TO OBSERVE THE CONSTITUTIONAL

PRECEPTS SET FORTH ABOVE, THE RIGHT TO DUE PROCESS HAS BEEN
VIOLATED, SINCE DUE PROCESS IS THE GENUS, AND THOSE SET FORTH
ABOVE, THE SPECIES. IN TERMS OF THE CONSTITUTIONAL COURT: "DUE
PROCESS IS UNDERSTOOD AS A PRINCIPLE OF JURISDICTION THAT HAS THE
QUALITY OF BEING A CONTINENT, THAT IS TO SAY, IN ITS BOSOM IT
HARBORS A SET OF SUB-PRINCIPLES OR RIGHTS THAT GIVE IT CONTENT" 7.
THAT IS, "THE RIGHT TO DUE PROCESS MEANS THE OBSERVANCE OF THE
ESSENTIAL FUNDAMENTAL RIGHTS OF THE DEFENDANT AND OF THE
ESSENTIAL RULES ENFORCEABLE WITHIN THE PROCESS AS AN INSTRUMENT
FOR THE PROTECTION OF SUBJECTIVE RIGHTS"8. THEREFORE, THE

7
EXP. NO. 3926-2008-PHC/TC.
8
EXP. 8817-2005-HC/TC.
VIOLATION OF THIS RIGHT MUST BE TAKEN INTO ACCOUNT AS GROUNDS
FOR THE PRESENT CASSATION.

SECOND.- THE SENTENCE VIOLATES THE

MATERIAL LAW- THIS IS SO BECAUSE:

A) IT DID NOT APPLY THE CRIMINAL LAW.

ARTICLE 20, PARAGRAPH 1) OF THE PENAL CODE ESTABLISHES THAT "HE
IS EXEMPT FROM CRIMINAL LIABILITY: 1) WHOEVER, DUE TO PSYCHIC
ANOMALY, SERIOUS ALTERATION OF CONSCIOUSNESS OR DUE TO
SUFFERING ALTERATIONS IN PERCEPTION, WHICH SERIOUSLY AFFECT HIS
CONCEPT OF REALITY, DOES NOT POSSESS THE FACULTY TO UNDERSTAND
THE CRIMINAL NATURE OF HIS ACT OR TO DETERMINE HIMSELF
ACCORDING TO HIS UNDERSTANDING" (UNDERLINING IS OURS).

IN THIS REGARD, THE DOCTRINE HAS

ESTABLISHED THAT THE PSYCHIC ANOMALY IS DUE TO ENDOGENOUS
CAUSES; ON THE OTHER HAND, THE SERIOUS ALTERATION OF
CONSCIOUSNESS IS DUE TO EXOGENOUS CAUSES SUCH AS ALCOHOL. IN
THE PRESENT CASE, ALL THE PARTICIPANTS (INJURED PARTIES AND
DEFENDANTS) WERE UNDER THE INFLUENCE OF ALCOHOL. MOREOVER,
MY CLIENT, ACCORDING TO THE FACTS, WAS DRINKING FROM THE
AFTERNOON OF MAY 25 UNTIL THE EARLY HOURS OF MAY 26, 2011.
ALTHOUGH THIS CIRCUMSTANCE DOES NOT EXEMPT HIM FROM
CRIMINAL LIABILITY, IT CONSTITUTES A MITIGATING CIRCUMSTANCE
DUE TO RELATIVE EXEMPTION. THE CRIMINAL CHAMBER OF THE
SUPREME COURT EXPRESSED ITSELF IN THIS SENSE: "THE DEFENDANTS,
AT THE TIME OF COMMITTING THE ACTS UNDER TRIAL, WERE IN A STATE OF
RELATIVE DRUNKENNESS, AND ALTHOUGH THERE IS NO EXPERT EVIDENCE
IN THIS REGARD, IT IS ACCREDITED WITH THE VICTIM'S PREVENTIVE
DETENTION AND THE DEFENDANTS' OWN STATEMENT FROM THE
PRELIMINARY STAGE TO THE ORAL TRIAL; THAT THE DRUNKENNESS OF THE
AFOREMENTIONED DEFENDANTS, ALTHOUGH NOT EXEMPTING THEM FROM
THE CHARGES, WAS NOT THE ONLY REASON FOR THEIR INABILITY TO
COMMIT THE ACTS UNDER TRIAL.ALTHOUGH THE DRUNKENNESS OF THE
DEFENDANTS DOES NOT EXEMPT THEM FROM CRIMINAL LIABILITY, IT
CONSTITUTES AN EXTENUATING CIRCUMSTANCE FOR RELATIVE
EXEMPTION, AS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 20
OF THE CRIMINAL CODE."9. HOWEVER, THIS CIRCUMSTANCE WAS NOT
ASSESSED BY THE TRIAL COURT, NOR BY THE APPELLATE COURT UNDER
THE PRETENSE THAT IT WAS ALREADY ASSESSED BY THE COURT A QUO,
WHEN IN FACT, IT WAS NOT.

THIRD.- THE JUDGMENT OF THE HEARING DID

NOT OBSERVE BINDING JURISPRUDENTIAL DOCTRINE- THIS IS SO
BECAUSE:

REGARDING THE DETERMINATION OF THE CIVIL

REPARATION, THE APPEALED JUDGMENT DOES NOT EXPRESSLY STATE
WHETHER THE TWO PERSONS SENTENCED FOR THE CRIMINAL EVENT OR
ONLY MY CLIENT MUST PAY THE CIVIL REPARATION.

FROM A CAREFUL READING OF THE JUDGMENT

AT THE HEARING IT IS INFERRED THAT ONLY MY CLIENT MUST PAY IT.
WE INFER THIS DUE TO THE FACT THAT, IN THE SENTENCE OF EARLY
TERMINATION TO WHICH MY CLIENT'S CO-PARTY APPEALED, IT WAS
ESTABLISHED AS GLOBAL CIVIL REPARATION THE AMOUNT OF S/.
26,000.00 NUEVOS SOLES, AND IN THE SENTENCE OF CONFORMITY OF
FIRST AND SECOND INSTANCE IT WAS ESTABLISHED AS GLOBAL CIVIL
REPARATION THE SUM OF S/. 56,000.00 NUEVOS SOLES.

IF THIS IS SO, THE APPEALED JUDGMENT

VIOLATED THE PLENARY RESOLUTION NO. 05-2008/CJ-116 WHICH

9
EXP. 295-2001-LA LIBERTAD.
ESTABLISHED AS A LEGAL DOCTRINE THAT THE AMOUNT OF THE CIVIL
REPARATION "IS BASED ON THE GLOBAL DAMAGE CAUSED UNDER THE
RULE OF SOLIDARITY AMONG THOSE RESPONSIBLE FOR THE PUNISHABLE
ACT". THEN, THE APPELLATE COURT, REFORMING THE JUDGMENT OF
FIRST INSTANCE, AS WE REQUESTED, SHOULD HAVE FIXED THE AMOUNT
OF THE CIVIL REPARATION IN A GLOBAL MANNER [THE AMOUNT IN
QUESTION WILL ALWAYS BE A SINGLE AMOUNT, IT CANNOT BE
DIVIDED], SO THAT SINCE IT IS JOINT AND SEVERAL, SINCE THERE ARE
TWO CO-PARTICIPANTS, WHEN SENTENCING THEM IN THE SUCCESSIVE
TRIAL, AS HAPPENED IN THIS CASE, IT SHOULD NOT VARY BUT INCLUDE
MY CLIENT IN THE AMOUNT OF THE CIVIL REPARATION.SINCE THERE
ARE TWO CO-PARTICIPANTS, WHEN A SENTENCE IS ISSUED AGAINST
THEM IN THE SUBSEQUENT TRIAL, AS IT HAPPENED IN THIS CASE, THE
AMOUNT OF THE REPARATION SHOULD NOT VARY BUT SHOULD
INCLUDE MY CLIENT IN ITS PAYMENT; THAT IS TO SAY, THE GLOBAL
CIVIL REPARATION SHOULD HAVE BEEN ONLY THE SUM OF S/. 26,000.00
NUEVOS SOLES, INCLUDING IN THIS PAYMENT THE TWO CONVICTED
PERSONS JOINTLY AND SEVERALLY.

V. REASONS JUSTIFYING THE DEVELOPMENT

OF THE JURISPRUDENTIAL DOCTRINE (-ON
THE CONFORMITY OF THE ACCUSED AT
TRIAL-).

ALTHOUGH THERE IS A PLENARY AGREEMENT

(05-2008) THAT REGULATES THE EARLY CONCLUSION OF THE ORAL
TRIAL, IT LACKS PRECISION WITH RESPECT TO CERTAIN POINTS. POINTS
THAT NECESSARILY HAVE TO BE CLARIFIED BY THE SUPREME COURT,
TAKING INTO CONSIDERATION, WITH ALL DUE RESPECT, THE
FOLLOWING CONSIDERATIONS, IN ORDER TO AVOID CONFUSION
REGARDING THE PROCEDURE AND EFFECTS OF THE CONFORMITY OF
THE ACCUSED IN THE ORAL TRIAL:

THE INSTITUTE OF "CONFORMITY" HAS ITS

SOURCE IN THE SPANISH LEGISLATION10; HOWEVER, IN THE PERUVIAN
PROCEDURAL SYSTEM IT WAS BORN UNDER THE NAME OF
"ANTICIPATED CONCLUSION OF THE ORAL DEBATE", ESTABLISHED IN
ARTICLE 5 OF LAW NO. 2812211, DATED 16.01.2003. THE 2004 CPP
REGULATES IT IN ARTICLE 372º, UNDER THE TITLE "POSITION OF THE
ACCUSED AND ANTICIPATED CONCLUSION OF THE TRIAL", WHICH IN ITS
PARAGRAPH 5, EXPRESSLY MENTIONS THE WORD "CONFORMITY"
REFERRING TO THIS INSTITUTION.

CONFORMITY", IMPLIES THE ACCEPTANCE BY

THE ACCUSED OF THE FACTS AND OF THE CRIMINAL AND CIVIL
LIABILITY, RESULTING IN THE ANTICIPATED CONCLUSION OF THE
TRIAL12. SAN MARTÍN CASTRO, FOLLOWING MORENO CATENA AND
GÓMEZ COLOMER DEFINES IT AS "....AN INSTITUTION OF A COMPLEX
NATURE, BY VIRTUE OF WHICH, THE PASSIVE PARTY, THAT IS, BOTH THE
DEFENDANT AND HIS TECHNICAL DEFENSE COUNSEL, ACCEPT OR ADMIT
THE FACTS CHARGED IN THE PROSECUTION INDICTMENT AND, WITH
CERTAIN LIMITS, THE CRIMINAL AND CIVIL LIABILITY FOR THEIR
COMMISSION; LIMITS EXCLUSIVELY CIRCUMSCRIBED BOTH TO THE
QUALITY AND QUANTITY OF THE SENTENCE REQUESTED.. ."13.

THE EARLY TERMINATION OF THE PROCESS

REGULATED IN ARTICLES 468º TO 471º OF THE CPP DIFFERS FROM
10
ARTICLE 694 OF THE CRIMINAL PROCEDURE LAW OF 1882.
11
THE NEW LAW IS IN FORCE IN SOME JUDICIAL DISTRICTS OF THE NATIONAL TERRITORY WHERE THE 2004
CPP IS NOT YET IN FORCE.
12
THE CONCLUSION OF THE TRIAL IS NOT IMMEDIATE, THERE WILL BE DEBATE ON DISSENTING ASPECTS
OTHER THAN THE ACCEPTED FACT; BUT, WITH RESPECT TO THE ORDINARY TRIAL THERE WILL BE AN
ANTICIPATED CONCLUSION.
13
SAN MARTÍN CASTRO, CÉSAR EUGENIO. "THE CONFORMITY OR ANTICIPATED CONCLUSION OF THE ORAL
DEBATE". IN: DIALOGUE WITH JURISPRUDENCE. NO. 92. LEGAL GAZETTE. LIMA, 2006, P. 1,2.
CONFORMITY (EARLY CONCLUSION) (372º CPP), ESSENTIALLY, IN THAT
EARLY TERMINATION CAN ONLY BE AGREED UPON BEFORE THE
PROSECUTOR'S INDICTMENT, WHILE CONFORMITY CAN ONLY TAKE
PLACE AT THE BEGINNING OF THE TRIAL.

IN TERMS OF PROCEDURE, AND HERE WE MAKE

SOME COMMENTS: AT THE ORAL TRIAL HEARING, THE PROSECUTOR
SUMMARIZES THE FACTS THAT ARE THE OBJECT OF THE ACCUSATION;
SUBSEQUENTLY, THE ATTORNEYS FOR THE CIVIL PLAINTIFF, THE CIVIL
THIRD PARTY AND THE DEFENDANT, IN THAT ORDER, CONCISELY
PRESENT THEIR CLAIMS OR DEFENSE ARGUMENTS (371º CPP). THE JUDGE,
AFTER HAVING INSTRUCTED THE ACCUSED OF HIS RIGHTS, WILL ASK
HIM IF HE ADMITS BEING THE AUTHOR OR PARTICIPANT OF THE CRIME
CHARGED AND RESPONSIBLE FOR THE CIVIL REPARATION (372º.1 CPP).
THE DEFENDANT HAS TWO POSSIBILITIES IN RESPONSE: 1) NOT
ADMITTING THE CHARGES (EXPRESSLY DENYING THEM OR REMAINING
SILENT) AND, 2) ADMITTING THE CHARGES (EXPRESSLY ADMITTING
THEM, BEFORE OR AFTER CONFERRING WITH THE PROSECUTOR TO
REACH AN AGREEMENT ON THE PENALTY AND CIVIL REPARATION). IF
THE DEFENDANT OPTS FOR THE SECOND POSSIBILITY, I.E.
"COMPLIANCE", THE TRIAL WILL BE CONCLUDED EARLY14.

IT SHOULD BE NOTED THAT THE JUDGE WILL ASK

THE ACCUSED IF HE ADMITS "BEING THE AUTHOR OR PARTICIPANT OF
THE CRIME" THAT IS THE SUBJECT OF THE ACCUSATION (372º.1 CPP). THIS
WORDING LENDS ITSELF TO CONFUSION, BECAUSE THE PROSECUTOR
MAY QUALIFY - DUE TO ERROR, IGNORANCE OR OTHER REASONS - A
PUNISHABLE ACT IN A CRIMINAL TYPE THAT DOES NOT CORRESPOND; IN

14
ARTICLE 372.2 OF THE CPP HAS ONLY PROVIDED FOR THE CONCLUSION OF THE TRIAL WHEN THE
ACCUSED RESPONDS BY ADMITTING THE CHARGES; HOWEVER, IF HE FINALLY REACHES AN AGREEMENT
WITH THE PROSECUTOR, IT EVIDENTLY MEANS THAT HE IS ADMITTING THE CHARGES, SO THE ANTICIPATED
CONCLUSION OF THE TRIAL SHOULD ALSO BE DECLARED IN THIS CASE.
THIS CASE, THE JUDGE HAS THE POWER TO CORRECT THE TYPICITY
BECAUSE HE IS THE "MASTER OF THE TYPICITY JUDGMENT"15. IN THIS
SENSE, THE QUESTION THAT THE JUDGE SHOULD ASK THE ACCUSED IS
"WHETHER HE ADMITS THE FACTS THAT THE PROSECUTOR ACCUSES HIM
OF" (372.3 CPP)16, SINCE THE "CONFORMITY" OF THE ACCUSED MUST BE
WITH RESPECT TO THE INCRIMINATED FACT AND NOT WITH RESPECT TO
THE LEGAL QUALIFICATION THAT THE PROSECUTOR MAKES.

IF THE DEFENDANT ADMITS THE CHARGES (THE

FACTS, IT IS UNDERSTOOD) OR REACHES AN AGREEMENT WITH THE
PROSECUTOR, WHICH IS ANOTHER WAY OF ACCEPTING THE CHARGES,
THE JUDGE WILL HAVE TO DECIDE BETWEEN THREE ALTERNATIVES (AS I
UNDERSTAND IT): 1) ACCEPT THE ACCUSATION OR THE AGREEMENT, 2)
REFORM THE ACCUSATION17 OR THE AGREEMENT AND, 3) REJECT THE
ACCUSATION OR THE AGREEMENT. [ACCEPT, REFORM OR REJECT THE
PENALTY AND/OR CIVIL REPARATION STATED IN THE INDICTMENT OR
AGREEMENT, NOT THE FACTS, WHICH ARE DEEMED TO HAVE BEEN
ACCEPTED WITH THE AGREEMENT].

WILL OPT FOR THE FIRST ALTERNATIVE WHEN IT

CONSIDERS THAT THE ACCEPTED FACTS CONSTITUTE A CRIME, THAT
THE TYPICITY IS ADEQUATE, THAT THE ASSUMPTIONS FOR REFORMING
THE AGREEMENT OR ACCUSATION DO NOT CONCUR (372º.5 CPP) AND
THAT THE PENALTY WITH THE CIVIL REPARATION DOES NOT VIOLATE
THE PRINCIPLES OF LEGALITY, REASONABLENESS AND

15
CONSTITUTIONAL COURT. BASIS 11 OF THE JUDGMENT ISSUED IN EXP.NO.00031-2009-HC, AYACUCHO,
CASE: "JORGE LUIS ARELLANO ALANIA".
16
THERE IS A CONTRADICTION IN THE PROCEDURAL RULES BETWEEN THE PROVISIONS OF ARTICLE 372.1
(ADMISSION OF AUTHORSHIP OR PARTICIPATION IN THE CRIME CHARGED) AND 372.3 (ACCEPTANCE OF THE
FACTS CHARGED), THE LATTER BEING IDENTIFIED WITH ARTICLE 372.5).
17
ARTICLE 372.2 STATES THAT THE ACCUSED MAY ADMIT CHARGES WITHOUT PRIOR AGREEMENT WITH THE
PROSECUTOR; HOWEVER, PARAGRAPH 5 OF THE ARTICLE IN QUESTION ONLY SPEAKS OF REFORMING THE
AGREEMENT, NOT THE ACCUSATION (IF THE CHARGES ARE ACCEPTED WITHOUT AGREEMENT WITH THE
PROSECUTOR), WHICH IS A MESS THAT IMPLIES PASSING SENTENCE ACCORDING TO THE TERMS OF THE
PROSECUTOR'S ACCUSATION IN ACCORDANCE WITH PARAGRAPH 2.
PROPORTIONALITY. IN THIS CASE, IT SHALL PASS SENTENCE IN
ACCORDANCE WITH THE AGREEMENT OR THE INDICTMENT.

THE JUDGE WILL REFORM THE ACCUSATION OR

THE AGREEMENT, ACCORDING TO ARTICLE 372º, PARAGRAPH 5, IN THE
CASE OF THE SECOND ALTERNATIVE, IF HE/SHE CONSIDERS THAT: (A)
THE FACT DOES NOT CONSTITUTE A CRIME (ATYPICALITY) OR THERE
ARE CAUSES THAT EXEMPT FROM LIABILITY (ARTICLE 20º OF THE CP), (B)
THERE ARE MITIGATING FACTORS NOT CONSIDERED IN THE AGREEMENT
OR INDICTMENT AND, (C) THE CIVIL REPARATION WAS QUESTIONED BY
THE CIVIL PLAINTIFF. THE JUDGE'S DECISION WILL BE, RESPECTIVELY:
TO ACQUIT THE ACCUSED, TO REDUCE THE PENALTY AND/OR CIVIL
REPARATION, TO FIX THE AMOUNT OF CIVIL REPARATION.

THE THIRD OPTION OF THE JUDGE IS TO REJECT

THE AGREEMENT (REGARDING THE PENALTY AND/OR CIVIL
REPARATION), WHEN HE VERIFIES THE VIOLATION OF THE PRINCIPLES
OF LEGALITY18, PROPORTIONALITY19 AND REASONABLENESS20. THIS
ALTERNATIVE IS NOT PROVIDED FOR IN THE PROCEDURAL NORM IN
QUESTION, HOWEVER, THERE ARE CASES SUCH AS: WHEN THERE IS AN
IMPROPER LEGAL QUALIFICATION OF THE IMPUTED ACT, WHEN THE
PRINCIPLES (LEGALITY, PROPORTIONALITY AND REASONABLENESS)
WERE VIOLATED IN ORDER TO FIX THE PENALTY AND/OR CIVIL

18
PLENARY RESOLUTION NO. 4-2009/CJ/116, ISSUED BY THE SUPREME CRIMINAL JUDGES ON NOVEMBER
13, 2009, IN PARAGRAPH 17, THEY STATE: "THE PROBLEM ARISES WHEN THE PROSECUTION HAS
ERRONEOUSLY REQUESTED THE IMPOSITION OF A PENALTY THAT DOES NOT CORRESPOND TO WHAT IS
PROVIDED FOR BY LAW, EITHER BECAUSE IT HAS REQUESTED THE APPLICATION OF A PENALTY LOWER THAN
THE LEGAL MINIMUM, OR BECAUSE IT HAS OMITTED TO REQUEST ANY OF THE PENALTIES PROVIDED FOR
BY LAW.IN THESE CASES, THE PRINCIPLE OF LEGALITY PREVAILS, SINCE THE JUDGE IS SUBJECT TO THE LAW,
WHICH HE CANNOT FAIL TO APPLY IT. IN SHORT, THE JUDGE MUST IMPOSE THE PENALTY WITHIN THE
CORRESPONDING LEGAL FRAMEWORK. IT IS NOT LEFT TO THE DISCRETION OF THE PUBLIC PROSECUTOR'S
OFFICE TO ESTABLISH PENALTIES DIFFERENT FROM THOSE ESTABLISHED BY LAW FOR EACH CRIME".
19
ARTICLE VIII, OF THE PRELIMINARY TITLE OF THE PENAL CODE: "THE PENALTY CANNOT EXCEED THE
RESPONSIBILITY FOR THE ACT".
20
BASIS 12 OF CONSTITUTIONAL COURT DECISION Nº 0090/AA/TC, PUBLISHED ON 07/16/2004. CASE: "JUAN
CARLOS CALLEGARIHERAZO".
REPARATION. WHEN REJECTING THE PLEA AGREEMENT, THE COURT IS
FACED WITH A DILEMMA: SHOULD IT CONCLUDE THE PROCESS BY
REFORMING THE AGREEMENT OR THE INDICTMENT? OR PROCEED WITH
THE TRIAL? IF THEY DECIDE TO CONTINUE WITH THE TRIAL, THEY MUST
DISQUALIFY THEMSELVES FROM HEARING THE CASE BECAUSE THEY
HAVE HEARD THE INITIAL PLEADINGS AND THE ADMISSION OF
CHARGES21. ANOTHER POSITION IS TO CONTINUE WITH THE
DEVELOPMENT OF THE FOREGONE CONCLUSION, LIMITING THE DEBATE
TO THE EXTREMES OF DISAPPROVAL22. IN MY OPINION, IF THE JUDGE
SEES THE NEED FOR A CONTROL IN MALAM PARTEM, HE MUST DENY THE
CONFORMITY AND ORDER TO CONTINUE WITH THE DEVELOPMENT OF
THE ORAL TRIAL, CONSIDERING AS "...NONEXISTENT THE ADMISSION OF
CHARGES, AS IF IT HAD NEVER OCCURRED." 23; ON THE OTHER HAND, IF HE
PERFORMS A CONTROL IN BONAM PARTEM, HE MUST DENY THE
CONFORMITY AND DELIMIT THE DEBATE IN THE EXTREMES OF
DISAPPROVAL TO CONTINUE WITH THE ANTICIPATED CONCLUSION.

THESE CONSIDERATIONS SHOULD BE BORNE IN

MIND IN ORDER TO EVENTUALLY DEVELOP JURISPRUDENTIAL
DOCTRINE IN THIS REGARD.

VI. NATURE OF THE GRIEVANCE (-LEGITIMACY

AND INTEREST TO APPEAL, SUBJECTIVE
PRESUPPOSITION OF THE PRESENT APPEAL).

ARTICLE 405.1.A OF THE CODE OF CRIMINAL

PROCEDURE INFORMS US THAT FOR AN APPEAL TO BE ADMITTED, IT
MUST BE FILED BY WHOEVER IS AGGRIEVED BY THE DECISION, HAS A
21
EXP. NO. 11599-2008-AREQUIPA. ORDER DISAPPROVING THE AGREEMENT ISSUED ON SEPTEMBER 11,
2009, CASE: "LEONARDO QUISPE QUISPE".
22
EXP. Nº.201-2009-HUAURA. WHERE AFTER DISAPPROVING THE AGREEMENT, THE DEBATE WAS DELIMITED
AND A SENTENCE WAS ISSUED ON DECEMBER 9, 2009, IN THE CASE: "LUIS OSORIO FLORES".
23
PEÑA CABRERA FREYRE, ALONSO. THE NEW PERUVIAN CRIMINAL PROCEDURE. GACETA JURÍDICA, LIMA,
2009, PP. 260, 261.
DIRECT INTEREST AND IS LEGALLY AUTHORIZED TO DO SO. IN GOOD
FAITH, IT SPEAKS TO THE LEGITIMACY OF AND INTEREST IN APPEALING.

*******
MY CLIENT, , WHO RATIFIES THE PRESENT
APPEAL, HAS STANDING IN THE PROCEEDING(LEGITIMATIO AD PROCESO)
BECAUSE HE IS A PROCEDURAL SUBJECT AND, THEREFORE, AN
INTERVENING PARTY IN THE PROCEEDING SUB IUDICE.

ON THE OTHER HAND, MY CLIENT HAS A LEGAL

INTEREST TO APPEAL(LEGITIMATIO AD CAUSAM), INSOFAR AS THE
APPEALED JUDGMENT CAUSES HIM HARM, BECAUSE - VIOLATING
CONSTITUTIONAL PRECEPTS, INFRINGING THE MATERIAL LAW AND
DEVIATING FROM THE JURISPRUDENTIAL DOCTRINE WITHOUT REASON -
HE WAS SENTENCED TO 24 YEARS OF IMPRISONMENT, AS WELL AS THE
REPARATORY PAYMENT OF S/. 6,000.00 NUEVOS SOLES IN FAVOR OF THE
AGGRIEVED PARTY ******* AND OF S/. 50,000.00 NUEVOS SOLES IN FAVOR OF
*******,
THE LEGAL HEIRS OF THE AGGRIEVED PARTY WITH THE REST
CONTAINED THEREIN.

IT SHOULD BE NOTED HERE THAT THE ADVERSE

DECISION OF THE FIRST INSTANCE WAS NOT CONSENTED TO, WHICH
REINFORCES THE INTEREST TO APPEAL.

VII. THE COURT OF CASSATION (-TO THE COURT

OF CASSATION-).

TAKING INTO CONSIDERATION THAT "CASSATION

HAS AN EMINENTLY DEFENSIVE PURPOSE OF THE IUS CONSTITUTIONIS OF
THE LEGAL SYSTEM, THROUGH TWO WAYS: A) THE NOMOPHYLACTIC
FUNCTION, WHICH INVOLVES THE PROTECTION OR SAFEGUARDING OF THE
NORMS OF THE LEGAL SYSTEM; AND B) THE UNIFYING FUNCTION OF THE
JURISPRUDENCE IN THE INTERPRETATION AND APPLICATION OF THE LEGAL
NORM"24.

ALSO, CONSIDERING THAT THE CASSATION HAS

A RESCINDING CHARACTER AND, EVENTUALLY, A RESCISSORY
CHARACTER, PROVIDED THAT A NEW DEBATE IS NOT NECESSARY
(ARTICLE 433º PARAGRAPHS 1 AND 2 OF THE CODE OF CRIMINAL
PROCEDURE).

I REQUEST THE CRIMINAL CHAMBER OF THE

SUPREME COURT TO DECLARE THE PRESENT CASSATION APPEAL WELL-
FOUNDED; CONSEQUENTLY, DECLARE NULL AND VOID THE JUDGMENT
OF HEARING WITHOUT RESUBMISSION OF THE CASE, PROCEEDING TO
REPLACE THE APPEALED JUDGMENT WITH A FAVORABLE JUDGMENT IN
*******
FAVOR OF OR; FAILING THAT, DECLARE NULL AND VOID THE
JUDGMENT OF HEARING WITH RESUBMISSION OF THE PROCESS TO THE
PLACE OF ORIGIN, INDICATING THAT A NEW JUDGMENT BE ISSUED IN
ACCORDANCE WITH THE LAW.

I FURTHER REQUEST THE SUPREME COURT OF

JUSTICE OF THE REPUBLIC TO DEVELOP BINDING JURISPRUDENTIAL
DOCTRINE WITH RESPECT TO THE POINTS DISCUSSED IN THE FIFTH
PARAGRAPH OF THIS APPEAL.

FOR THE FOREGOING REASONS:

TO YOU, MR. PRESIDENT OF THE FIRST CRIMINAL

COURT OF APPEALS OF PUNO, I REQUEST THAT THE APPEAL FOR
CASSATION DULY FILED BE CONSIDERED FORMALIZED AND GROUNDED,
TO SUBSTANTIATE IT ACCORDING TO ITS NATURE AND TO ORDER, IN
DUE TIME, THE ELEVATION OF THE FILE TO THE CRIMINAL CHAMBER OF

24
SAN MARTÍN CASTRO, CÉSAR. CRIMINAL PROCEDURAL LAW; VOLUME III; LIMA-PERU. GRIJLEY PUBLISHING
HOUSE, SECOND EDITION, 2003. PAGE 718.
THE SUPREME COURT OF JUSTICE OF THE REPUBLIC, AS IT LEGALLY
CORRESPONDS.

PUNO, AUGUST 28, 2013.