Filed 5/15/13 City of San Diego v. Boggess CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



CITY OF SAN DIEGO et al.,                                           D061715

         Plaintiffs and Respondents,

         v.                                                         (Super. Ct. No. MCR 12-006)

ESTHER BOGGESS,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Frederick

Maguire, Judge. Affirmed.



         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jan I. Goldsmith, City Attorney, Mary Jo Lanzafame, Assistant City Attorney,

Paige E. Folkman, Deputy City Attorney for Plaintiffs and Respondents.
       Appellant Esther Boggess appeals an order for the seizure and destruction of her

firearms following a petition filed under Welfare and Institutions Code1 section 8102

after her release from a facility at which she was detained for psychiatric evaluation

under section 5150. The court granted the petition, finding petitioners City of San Diego,

Chief of Police William Lansdowne, and the San Diego Police Department (collectively

City) demonstrated return of the firearms to Boggess would be likely to result in

endangering Boggess or others, and they should not be returned to her, but forfeited and

destroyed.

       Boggess contends there was insufficient evidence to support the court's

determination that return of the firearms would be likely to pose a risk of harm to herself

or others. She also contends section 8102 is unconstitutional in light of two United States

Supreme Court cases, District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) and

McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020] (McDonald), as the

statute infringes on her fundamental Second and Fourteenth Amendment right to bear

arms. We reject these contentions and affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

Police Response2

       On December 31, 2011, San Diego Police Officer Stephanie Ott responded to a

report of a suicide threat made by then seventy-two-year-old Esther Boggess. A

1       All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
2       This portion of the factual background is taken from the declaration of the
responding police officer.
                                             2
concerned family member had called the San Diego Police Department after Boggess

said she wanted to "get it over with" and that she wanted to shoot herself with a gun but

was just missing the bullets.

       When Officer Ott arrived at Boggess's apartment, she asked if there were any

firearms in the house and Boggess replied, "Yes, but it is put away right now." Officer

Ott called Boggess's niece, the family member who had called the police, to confirm her

concerns. The niece had been talking with her aunt on the phone earlier when she made

the statements concerning her desire to shoot herself. Boggess told her niece that she was

depressed about ailing health and stated, "What's the point of living, what else is gonna

happen now?" Boggess admitted to Officer Ott that she made that remark to her niece

over the phone. Boggess was detained and transported to the County of San Diego

Mental Health Services (CMH) for an evaluation. While driving to the hospital, Boggess

told Officer Ott that she was only joking when she made those statements and mumbled

several times, "What else is gonna happen now?" The officer found three handguns in

Boggess's closet and had them impounded.

Mental Health Evaluation

       Upon arrival to CMH, Boggess received a psychosocial assessment, medication

evaluation, and crisis stabilization. She was evaluated by Alan Edwards, M.D., who

noted Boggess had expressed concerns about her failing health. She also stated that she

complained to her niece about her car being towed and the extremely high storage fee.

Boggess denied being suicidal or having any history of earlier suicide attempts or

psychiatric hospitalizations. On the day of her assessment, when asked about any

                                             3
suicidal thoughts she told a nurse, "I'm Catholic—it goes against God's law." Dr.

Edwards noted Boggess was generally "dysphoric," (feeling unhappy or unwell, see

Merriam-Webster's Collegiate Dictionary (11th ed. 2006) p. 389) and diagnosed her with

depressive disorder with contributing psychosocial and environmental problems of

economic hardship and access to healthcare.

          Dr. Edwards opined that Boggess's current potential for harm "could be high as the

patient has few supports, multiple stresses, and lethal means." After Dr. Edwards's

evaluation, he admitted Boggess to the emergency psychiatric unit on an involuntary

basis. He indicated that "[d]ischarge will be considered when the patient is no longer

suicidal, when adequate support system has been ascertained, and when reasonable

stresses have been dealt with."

          A CMH client assignment & service record shows that Boggess was referred out

to Mesa Vista hospital because she required a higher level of medical care. Her legal

status at the time of discharge from CMH was marked as "5150"3 and it was noted that

she had previously had access to weapons. At the time of transfer Boggess was listed as

stable, but was transferred by ambulance because she posed a risk of harm to herself or

others.




3      Section 5150 states in part that "any person, as a result of mental disorder . . . upon
probable cause [can] be taken . . . into custody and place[d] . . . in a facility designated by
the county and approved by the State Department of Social Services as a facility for 72-
hour treatment and evaluation."
                                               4
The Section 8102 Hearing

       Pursuant to section 8102, City filed a petition to retain and destroy the firearms

seized from Boggess. Boggess requested a hearing (§ 8102, subds. (e), (f)), at which the

trial court and parties reviewed her medical records. At the hearing, in response to

questions regarding the police report and the statements made to her niece over the

phone, Boggess explained that the guns belonged to her late husband; that she had not

touched them in six years and did not know how to put a bullet in them. She admitted

talking to her niece, who had called after she found out Boggess's car had been towed,

but Boggess stated she was "kidding" with her niece and the only thing she said was,

"With that money I'm going to spend, I don't think—why I am going to live?" Boggess

asserted her niece just "imagine[d]" that she was going to kill herself, and that her

religious beliefs precluded her from considering suicide.

       During the hearing, City presented medical records and a police report to the

court. The court acknowledged that Boggess was under financial pressure and was

having medical problems at the time of the incident. It took note of the fact that Boggess

was involuntarily admitted for psychiatric evaluation stating, "Not everybody who

presents to CMH gets admitted. They admitted you." The court concluded that CMH

was concerned about Boggess's mental well-being, and rather than accepting Boggess's

explanations, the court relied on the medical opinion that she was a danger to herself.

Though the court accepted Boggess's representation that she was an educated dentist, it

found her answers to be "nonresponsive" and "rambling" and that the petitioners had

proved by a preponderance of the evidence that return of the firearms would be likely to

                                              5
result in endangering Boggess or others. The court ordered the firearms seized be

forfeited and destroyed.

                                       DISCUSSION

                                   I. Overview of Section 8102

       Section 8102 authorizes the seizure and possible forfeiture of weapons belonging

to persons detained for examination under section 5150 because of their mental

condition. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 416-417 (Rupf); People v. One

Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 312.) Section 8102, subdivision (a)

provides in part: "Whenever a person, who has been detained or apprehended for

examination of his or her mental condition . . . is found to own, have in his or her

possession or under his or her control, any firearm whatsoever, or any other deadly

weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement

agency or peace officer, who shall retain custody of the firearm or other deadly weapon."

At the time the weapons are seized, the agency must notify the person from whom the

weapon is seized of the procedure for the return of the confiscated firearms. (§ 8102,

subd. (b).) The law enforcement agency must make the firearms available for return

unless it timely files a petition to determine whether returning them "would be likely to

result in endangering the person or others, and . . . send[s] a notice advising the person of

his or her right to a hearing on this issue." (§ 8102, subds. (c), (d); Rupf, 85 Cal.App.4th

at p. 420.) Section 8102 thus "places the onus upon law enforcement to initiate the

forfeiture proceeding, and to bear the burden of proof on the issue of the danger presented

by return of the weapons." (Rupf, at p. 420, citing § 8102, subd. (c).)

                                              6
       "Section 8102 directly safeguards public health and safety by allowing law

enforcement officers to confiscate any firearm in the possession or control of a person

who is appropriately detained or apprehended for a mental examination. Keeping a

firearm away from a mentally unstable person is a reasonable exercise of the police

power. It is not unreasonable to conclude there is a significant risk that a mentally

unstable gun owner will harm himself or others with the weapon." (Rupf, supra, 85

Cal.App.4th at p. 423.)

            II. The Court's Forfeiture Decision is Supported by Substantial Evidence

       Boggess challenges the sufficiency of the evidence to support the trial court's

factual conclusion that she would not be likely to use firearms in a safe and lawful

manner. Comparing the circumstances of her case to those in People v. Keil (2008) 161

Cal.App.4th 34 and People v. Jason K. (2010) 188 Cal.App.4th 1545, she maintains the

sole evidence submitted by City was medical records of her three-hour hospitalization

and her niece's remarks, which she characterizes as a "misinterpretation." As Boggess

summarizes the evidence, she claims she "never threatened to shoot or harm herself or

others" and she points out she "steadfastly denied having threatened to harm herself" at

the hospital. Boggess also argues there was no evidence that she had ever used her

firearms in a dangerous way, nor was there evidence suggesting she had a prior history of

mental illness or a criminal record. Finally, Boggess states she was stable when

discharged from the hospital, and had only been diagnosed with depression "not

otherwise specified," which is not enough to show she would be unlikely to use her late



                                             7
husband's firearms in a safe and lawful manner, or that their return to her would result in

danger to her or others.

       We apply the substantial evidence standard of review. (People v. Jason K., supra,

188 Cal.App.4th at p. 1553; People v. Keil, supra, 161 Cal.App.4th at p. 38.) An order

authorizing the destruction of the weapons can only withstand appellate scrutiny if

"substantial evidence supports the court's determination that return of the firearms to

appellant would likely result in endangering appellant or other persons." (Rupf, supra, 85

Cal.App.4th at p. 428.) In determining whether a trial court's ruling is supported by

substantial evidence, the appellate court should view the whole record in the light most

favorable to the ruling, resolving all evidentiary conflicts and drawing all reasonable

inferences supporting the court's decision. (People v. Jason K., at p. 1553.) If the trial

court finds City has not met its burden of proof, the restriction is removed, and the person

shall be entitled to own, possess, control, receive or purchase firearms, unless another

legal restriction applies. (People v. Keil, at p. 38, citing § 8103, subd. (f)(1).)

       Looking to City's evidence and all reasonable inferences favoring the superior

court's findings, we conclude the record contains substantial evidence to support the

granting of the petition and its finding that return of the firearms would endanger

Boggess or others. The mental health evaluation in the record indicates Boggess was

under significant stress regarding her health and financial matters. Contrary to Boggess's

characterization of the evidence as showing she never threatened to shoot herself, her

statements to her niece documented by Officer Ott—that Boggess was depressed about

her health and car being impounded, wanted to "get it over with," and was going to shoot

                                               8
herself with a gun but was missing the bullets—plainly show otherwise. These

comments worried Boggess's niece enough to call the police. Further, Boggess was not

only presented to the CMH, but was admitted to the emergency psychiatric unit on an

involuntary basis for depression.

       The medical records showed Boggess was diagnosed with "depressive disorder"

and a medical evaluation noted that she was "a woman with emerging stresses, some

limited coping skills, and fairly distant support system," with impaired insight and

judgment. The judge considered these factors in making the ultimate assessment of the

danger posed by Boggess. Boggess could have presented her own evidence of her

medical or mental health condition (see, e.g., Rupf, supra, 85 Cal.App.4th at p. 424

["Both the gun owner and the authorities have the opportunity to present evidence of the

gun owner's mental condition, including introduction of testimony by medical

professionals"]) but she instead chose to argue she was "kidding" and that her niece

misinterpreted her statements, a claim the trial court was entitled to disbelieve and reject.

       Even if Boggess's statements triggering the December 31 incident were the result

of her niece's misunderstanding, the trial court was presented with police statements and

medical records persuading it that City's evidence met the preponderance standard.

Further, after hearing from Boggess, the court determined, implicitly if not expressly, that

the circumstances that lead to the section 5150 detention had not changed. "The court

may properly consider whether the circumstances leading to the section 5150 detention

might occur again and whether possession or control of those confiscated weapons in



                                              9
such circumstance would pose a risk of danger to appellant or to others." (Rupf, supra,

85 Cal.App.4th at p. 424.)

       We are not convinced by Boggess's comparison of her circumstances with those

individuals in People v. Keil, supra, 161 Cal.App.4th 34 and People v. Jason K, supra,

188 Cal.App.4th 1545. Substantial evidence review turns on whether the facts presented

in each case support the findings of the trial court. Looking to the specific facts of Keil

and Jason K. is unhelpful to our analysis. In sum, the medical reports, police

observations, statements from Boggess's niece, and Boggess's own conduct at the hearing

constitute substantial evidence to support the trial court's findings that return of the

firearms would be likely to result in endangering Boggess or others.

        III. Section 8102 Does Not Violate the Second and Fourteenth Amendment Right

                                            to Bear Arms.

       Boggess contends, in light of Heller, supra, 554 U.S. 570 and McDonald., supra,

561 U.S. ___ [130 S.Ct. 3020], section 8102 is facially unconstitutional because it denies

her fundamental Second and Fourteenth Amendment right to bear arms "based on little or

scant proof." In so arguing, Boggess urges us to disregard Rupf, supra, 85 Cal.App.4th

411, in which the court held section 8102 was not facially invalid because it did not deny

an individual gun owner his or her substantive due process rights nor was it

unconstitutionally vague. (Rupf, at pp. 419-428.) Boggess argues Heller and McDonald

have invalidated the "collective rights" model of the Second Amendment applied in




                                              10
Rupf,4 and that Heller and McDonald now confirm there is a fundamental and individual

constitutional right to bear arms.5 Although a defendant's failure to present an issue to

the trial court generally forfeits it on appeal, we exercise our discretion to consider the

issue to the extent it presents a pure question of law or involves undisputed facts. (See In

re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887-888, fn. 7.)

       We begin by recognizing the "strong presumption of the constitutionality of an act

of the Legislature." (Delaney v. Lowery (1944) 25 Cal.2d 561, 569.) " 'In considering

the constitutionality of a legislative act we presume its validity, resolving all doubts in

favor of the Act. Unless conflict with a provision of the state or federal Constitution is

clear and unquestionable, we must uphold the Act.' " (Amwest Sur. Ins. Co. v. Wilson

(1995) 11 Cal.4th 1243, 1252.) "[M]ere doubt by the judicial branch of the government

as to the validity of a statute will not afford a sufficient reason for a judicial declaration



4      The "collective rights" view interprets the Second Amendment right to bear arms
as securing only the right of the states to have a well regulated militia, not a right of
individuals. (Glenn Harlan Reynolds, A Critical Guide to the Second Amendment (1995)
62 Tenn. L.Rev. 461, 488-490; see Heller, supra, 554 U.S. at p. 579 [rejecting notion that
Second Amendment may be exercised "only through participation in some corporate
body" to maintain effective state militias].)

5       We note Boggess's arguments have several flawed premises. First, section 8102
does not eliminate a detainee's right to possess any and all firearms. Rather, as City
points out, it implicates only the detainee's property right in the specific firearms
confiscated by law enforcement. The statute is further limited to persons who are
detained for examination of their mental condition, and those weapons that were in their
custody and control at time of incident leading to their detention for a mental health
evaluation. Second, section 8102 requires a preponderance standard of proof that return
of firearms is likely to result in endangering Boggess or others, and thus Boggess's bare
assertion that it is permits forfeiture of firearms on "little or scant proof of mental illness"
is incorrect.
                                               11
of its invalidity, but . . . statutes must be upheld as constitutional unless their invalidity

clearly, positively, and unmistakably appears." (People v. Superior Court of San

Bernardino County (1937) 10 Cal.2d 288, 298, italics added.) These principles govern a

challenge to the facial validity of a statute. (See, e.g., Calfarm Ins. Co. v. Deukmejian

(1989) 48 Cal.3d 805, 814-815 [applying presumption in challenge to facial

constitutionality of initiative.)

       When confronted with a facial challenge to the constitutional validity of a statute,

the California Supreme Court has sometimes articulated differing standards. (Coffman

Specialties, Inc. v. Department of Transp. (2009) 176 Cal.App.4th 1135, 1145, citing

Guardianship of Ann S. (2009) 45 Cal.4th at 1110, 1126.) "Under the strictest test, the

statute must be upheld unless the party establishes the statute ' "inevitably pose[s] a

present total and fatal conflict with applicable constitutional prohibitions." ' [Citation.]

Under the more lenient standard, a party must establish the statute conflicts with

constitutional principles ' "in the generality or great majority of cases." ' [Citation.]

Under either test, the plaintiff has a heavy burden to show the statute is unconstitutional

in all or most cases, and ' "cannot prevail by suggesting that in some future hypothetical

situation constitutional problems may possibly arise as to the particular application of the

statute." ' " (Coffman Specialties, Inc., at p. 1145; see also Tobe v. City of Santa Ana

(1995) 9 Cal.4th 1069, 1084 [in a facial challenge, the court considers only the text of the

statute itself, not its application to the particular circumstances of an individual].) If a

statute is constitutional in its general and ordinary application, the statute is not facially

unconstitutional merely because "there might be some instances in which application of

                                               12
the law might improperly impinge upon constitutional rights." (American Academy of

Pediatrics v. Lungren (1997) 16 Cal.4th 307, 347; see also Guardianship of Ann S.,

supra, 45 Cal.4th at p. 1132; People v. Yarbrough (2008) 169 Cal.App.4th 303, 311.)

       The Second Amendment of the United States Constitution provides: "A well

regulated Militia, being necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed." (U.S. Const., 2nd Amend.) The laws at

issue in Heller and McDonald effectively banned the possession of handguns in the

home. (Heller, supra, 554 U.S. at p. 574; McDonald, supra, 561 U.S. at p. ___ [130

S.Ct. at p. 3026].) This court discussed the cases in Jason K.: "In Heller, the high court

evaluated the meaning of the Second Amendment, and concluded the constitutional right

to possess firearms was not limited to possession for military use and included an

individual's right to possess firearms in the home for self-defense. [Citation.] But the

court stated that '[l]ike most rights, the right secured by the Second Amendment is not

unlimited' [citation], and specifically noted that 'nothing in [its] opinion should be taken

to cast doubt on longstanding prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . .'

[Citation.] The court further explicitly recognized 'the problem of handgun violence in

this country,' and confirmed that the 'Constitution leaves . . . a variety of tools for

combating that problem . . . .' " (People v. Jason K., supra, 188 Cal.App.4th at p. 1555,

italics added.)

       In McDonald, the court held the Second Amendment right is "fully applicable to

the States" through the Due Process Clause of the Fourteenth Amendment. (McDonald,

                                               13
supra, 561 U.S. at p. ___ [130 S.Ct. at p. 3026] (plur. opn. of Alito, J.); id. at pp. 3058,

3088 (conc. opn. of Thomas, J.); see People v. Jason K., supra, 188 Cal.App.4th at p.

1555; People v. Delacy (2011) 192 Cal.App.4th 1481, 1487.) However, it expressly

"repeat[ed] [its] assurances" from Heller that "the right to keep and bear arms is not 'a

right to keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose' " and that its holding "did not cast doubt on such longstanding

regulatory measures as 'prohibitions on the possession of firearms by felons and the

mentally ill . . . .' " (McDonald, supra, 561 U.S. at p. ___ [130 S.Ct. at p. 3047], quoting

Heller, supra, 554 U.S. at pp. 626-627.)

       The holdings of Heller and McDonald address whether the Second Amendment

protects the right to possess a handgun in the home for self defense; they did not extend

Second Amendment protections to persons whose firearms are seized because they were

found to be a danger to themselves by reason of their mental health.6 To the contrary, as

indicated above, both Heller and McDonald identified an expressly nonexclusive list of

traditional limitations on the right to bear arms, characterizing them as "presumptively

lawful regulatory measures . . . ." (Heller, supra, 554 U.S. at p. 627, fn. 26; McDonald,

supra, 561 U.S. ___ [130 S.Ct. at p. 3047] (plur. opn. of Alito, J.); see People v. Delacy,

supra, 192 Cal.App.4th at p. 1487.) Section 8102, which prohibits a person detained


6       In Heller, the court indicated that, if confronted with a constitutional challenge to
its nonexclusive list of presumptively lawful exceptions to the Second Amendment, there
would "be time enough to expound upon the historical justifications for the exceptions
[it] mentioned if and when those exceptions [came] before [it]." (Heller, supra, 554 U.S.
at p. 635.)

                                              14
under section 5150 from recovering their seized firearms upon proof by the seizing

agency that returning the weapon would be likely to result in endangering that person or

others, is such a regulatory measure. We reject that in Heller and McDonald the U.S.

Supreme Court categorically invalidated such laws, which are designed to keep firearms

out of the hands of a dangerous person.

       Moreover, though Rupf relies on authorities predating and now abrogated by

Heller and McDonald,7 neither Heller or McDonald alter Rupf's recognition of the state

of California's "long . . . established" regulation of firearms as a "proper police function."

(Rupf, supra, 85 Cal.App.4th at p. 421, citing Galvan v. Superior Court of City and

County of San Francisco (1969) 70 Cal.2d 851, 866.) The Rupf court pointed to the

legitimacy of the ends sought to be accomplished by section 8102: "The exercise of the

police power to regulate firearms is clearly related to the public health, safety and

welfare. [Citation.] Respondent identifies the object of the statute as providing a means

whereby authorities can confiscate firearms in an emergency situation and may keep

firearms from mentally unstable persons. The legislative history of the statute expressly



7       In Heller, the court determined the treatment of the Second Amendment in Lewis
v. United States (1980) 445 U.S. 55, 65-66 [Second Amendment guarantees no right to
keep and bear a firearm that does not have some reasonable relationship to the
preservation or efficiency of a well regulated militia]) to be "footnoted dictum . . . ."
(Heller, supra, 554 U.S. at p. 625, fn. 25.) Rupf relied on Lewis v. United States for the
proposition that " '[l]egislative restrictions on the use of firearms are neither based upon
constitutionally suspect criteria, nor do they trench upon any constitutionally protected
liberties.' " (Rupf, supra, 85 Cal.App.4th at p. 421.) It also relied on Ninth Circuit and
other federal authorities—now abrogated—holding that the Second Amendment is a right
held by the states, and does not protect the possession of a weapon by a private citizen.
(Ibid., quoting Hickman v. Block (9th Cir. 1996) 81 F.3d 98, 101.)
                                              15
recognizes the urgency and importance of such an objective . . . ." (Rupf, at p. 422.)

"Keeping a firearm away from a mentally unstable person is a reasonable exercise of the

police power. It is not unreasonable to conclude there is a significant risk that a mentally

unstable gun owner will harm [her]self or others with the weapon." (Rupf, at p. 423.)

       We acknowledge Heller and McDonald's expansion of the right to own and bear

arms. (Heller, supra, 554 U.S. 570 at pp. 2797, 2827-2828, 2821-2822; McDonald,

supra, 561 U.S. ___ [130 S.Ct. at p. 3026] (plur. opn. of Alito, J.); id. at pp. ___, ___

[130 S.Ct. at pp. 3058, 3088] (conc. opn. of Thomas, J.).) However, neither holding

prohibits the government from regulating the possession of guns by persons proven to be

dangerous due to mental illness or suggests that those regulations are in direct conflict

with the Second Amendment. Subsequent decisions have affirmed that the state may

ensure that firearms are not in the hands of someone who may use them dangerously.

(See People v. Keil, supra, 161 Cal.App.4th 34; People v. Jason K., supra, 188

Cal.App.4th 1545.) Section 8102 has procedural devices and burdens set in place to

remedy constitutional deficiencies (see People v. One Ruger .22-Caliber Pistol, supra, 84

Cal.App.4th at pp. 313-314) and Heller and McDonald do not alter its validity.

       For the foregoing reasons, we conclude persons whose firearms are seized and

forfeited under section 8102 fall outside the scope of the Second Amendment, Boggess

has not demonstrated the statute to be facially unconstitutional, and California may

therefore enforce the law to protect the health, safety and welfare of its citizens.




                                              16
                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

WE CONCUR:


McDONALD, Acting P. J.


AARON, J.




                                     17
