[20] Supra note 18. [21] People v. Roger Galagati y Garduce, G.R. No. 207231, June 29, 2016. [22] Special Protection of Children Against Abuse, Exploitation and Discrimination Act. SEC. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charge in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. [23] SEC. 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. [24] People v. Pareja, 724 Phil. 759 (2014); People v. Rellola, 640 Phil. 471 (2010) ) and People v. Garcia, 695 Phil. 576 (2012). [25] See Separate Concurring Opinion in People v. Noel Caoili alias "Boy Tagalog", G.R. Nos. 196342 and 196848, August 8, 2017, pp. 5-7. xxxx An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter, whereas an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. x x x A comparison of the essential elements or ingredients of sexual abuse under Section 5(b), Article III of R.A. No. 7610 and acts lasciviousness under Article 336 of the RPC barely reveals any material or substantial difference between them. The first element of sexual abuse under R.A. No. 7610, which includes lascivious conduct, lists the particular acts subsumed under the broad term "act of lasciviousness or lewdness" under Article 336. The second element of "coercion and influence" as appearing under R.A. No 7610 is likewise broad enough to cover "force and intimidation" as one of the circumstances under Article 336. Anent the third element, the offended party under R.A. No. 7610 and Article 336 may be of either sex, save for the fact that the victim in the former must be a child. I therefore posit that the sexual abuse under Section 5(b), Article III of R.A. No. 7610 is necessarily included the crime of acts of lasciviousness under Article 336 of the RPC. Applying the variance doctrine in this case where the crime charged is rape by sexual intercourse, Caoili can still be convicted of sexual abuse under Section 5(b), Article III of R.A. No. 7610. This is because the same crime was proved during trial and is necessarily included in the crime of acts of lasciviousness under Article 336 of the RPC which, under settled jurisprudence, is necessarily included in a complaint for rape. [26] CA rollo, pp. 93-94. (Emphasis added). [27] Malta v. People, 560 Phil. 119, 135-136 (2007). [28] Id. at 135. [29] Supra note 25. [30] Emphasis and italics in the original; citations omitted. [31] Article 15 of the Revised Penal Code: Art. 15. Their concept. — Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender. The alternative circumstance of relationship shall be taken into consideration when the offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.