Filed 8/27/20 P. v. Gustin CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       SECOND APPELLATE DISTRICT

                                  DIVISION THREE

 THE PEOPLE,                                                         B297078

          Plaintiff and Respondent,                                  (Los Angeles County
                                                                     Super. Ct. No. GA099518)
          v.

 JASON SCOTT GUSTIN,

          Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael D. Carter, Judge. Affirmed.
      John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
             ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
       A jury convicted defendant Jason Scott Gustin of the
attempted murder of his girlfriend, Hayley R., and found true
that the attempted murder was committed willfully, deliberately,
and with premeditation. On appeal, defendant contends (1) the
trial court erred by excluding the testimony of defense expert
Dr. Gordon Plotkin, who would have testified that defendant had
borderline personality disorder and a below-average IQ, and
(2) CALCRIM No. 601, which defines premeditation and
deliberation, is unconstitutionally vague.
       We conclude that the trial court did not abuse its discretion
by excluding the testimony of Dr. Plotkin. Most of Dr. Plotkin’s
testimony was irrelevant to premeditation and deliberation, and
because there was overwhelming evidence that defendant
planned the attack on Hayley, it is not reasonably likely that the
jury would have reached a different result had it been permitted
to hear Dr. Plotkin’s testimony. We further conclude that the
trial court did not err in instructing the jury with CALCRIM
No. 601. We therefore affirm the judgment.
       FACTUAL AND PROCEDURAL BACKGROUND
       A.    Prosecution Evidence
       Defendant and Hayley R. began dating in June 2014, when
Hayley was 14 years old and defendant was almost 16 years old.
They dated for just over two years.
       In mid-August 2016, Hayley and defendant agreed to end
their relationship. A few days later, defendant texted Hayley
that he had changed his mind and wanted to get back together.
She told him she had been talking to a boy named Cole and was
ready to move on. Defendant became angry and threatened to
leak intimate photos of Hayley. He also texted Hayley’s mother
and said Hayley was cheating on him.




                                 2
       On August 17, 2016, Hayley and defendant met for lunch to
discuss their relationship. By the end of the lunch, Hayley and
defendant had decided to stop dating but to remain friends.
Either during or after the lunch, defendant told Hayley he had
been cutting himself, and he showed her the knife he had been
using.
       In the several days that followed, defendant texted Hayley
and begged her to get back together with him, telling her how
much he loved and needed her. He told her he could not live
without her, threatened to kill himself, and sent her a
photograph of his arm with superficial cuts on it, telling her he
had been hurting himself and would stop if they got back
together. In another text, he said he had brain cancer and would
get treatment only if she got back with him.
       On August 21, 2016, defendant texted Hayley that if she
met with him one more time to talk, he would not bother her
anymore. She wanted him to stop contacting her, so she agreed
to meet him. Defendant said he would pick her up and they
would go to a Denny’s restaurant near her house.
       The next day, August 22, 2016, defendant picked Hayley up
at her home at about 11:30 a.m. He seemed sad. He said that he
had changed his mind about going to Denny’s; he wanted instead
to go to a residential area where he and Hayley used to go to eat
lunch during the school year. Hayley was texting Cole when she
got in the car. Defendant asked who she was texting, and she
told him. He said, “Stop talking to him,” and grabbed her phone
and threw it into the back seat of the car. Defendant seemed
upset and angry. They continued in silence for a few minutes.
       After defendant parked the car, Hayley confronted him
about his threat to leak intimate photos of her. She asked




                                3
defendant to delete the photos, and he deleted them while she
watched. Defendant then asked Hayley why she chose Cole over
him. She said Cole was nicer and more respectful of her.
Defendant said he would change, but Hayley said she had given
him chances before and the relationship was over.
       Defendant got angrier and more emotional as the
conversation went on, and he asked Hayley, “Why are you acting
like this?” He had a look on his face she had never seen before.
He raised his voice and sounded mad and upset, which struck her
as odd because he had never talked to her that way before.
       After 10 or 15 minutes, Hayley told defendant she wanted
to go home. She said that if defendant still was upset, he should
hit her to get his anger out. Defendant said he would hit her, but
he wanted her to close her eyes first. She did so. There was a
pause of about 10 seconds, and then Hayley felt something
scratch the front of her neck. It felt like a pencil being traced
across her neck and it hurt slightly. Hayley opened her eyes, sat
up straight, and put her hands to her neck to see if there was
blood. As she did so, defendant locked the car doors and then
reached over and choked Hayley with both of his hands for 10 to
15 seconds. He had rage in his eyes, and Hayley was terrified he
would kill her.
       Hayley reached down and pulled the lever on her seat,
which caused the seat to recline. She tried to push defendant off
of her. Eventually he let go. Hayley begged defendant not to kill
her and said she would forget about Cole and would be with
defendant again and would not tell anyone what had happened.
She thought that if she said those things, defendant might let her
get out of the car. Defendant let Hayley go, and she thought he
was done. She said she needed some fresh air and wanted to get




                                4
out of the car. He said mockingly, “Oh, you want to go outside?”
Then, he pulled her into his lap and stabbed her in the back of
her neck with a knife. He said, “Don’t worry. I’ll kill myself after
I do this.” She believed he also said, “If I can’t have you, then no
one can.” He sounded “off, like scared and mad at the same
time.” Hayley took this to mean that he was going to kill her and
then kill himself.
        After 10 to 15 seconds, defendant took the knife out of
Hayley’s neck and sat up. Hayley was able to unlock the car door
and open it. As she got out of the car, defendant reached over
and cut her leg along her thigh. She later learned she also had a
cut on the back of her right bicep, but she did not know how she
got it.
        Hayley ran across the street to a convalescent hospital and
asked for help. Several nurses applied pressure to her wounds
and called 911. When the paramedics arrived, they drove her to
a hospital, where she was taken directly to the operating room.
She received stitches to the front of her throat, eight or nine
staples to the back of her neck, and 22 staples to her leg. The
injuries to the back of Hayley’s neck and to her thigh were the
deepest, affecting the skin, fatty tissue, and muscle. The injury
to Hayley’s right bicep was medium scale, affecting the skin, fatty
tissue, and fascia. The cut to the front of her throat was
superficial.
        An hour or two after defendant attacked Hayley, he was
treated by paramedics for a deep knife wound to his wrist. The
paramedics retrieved two knives from defendant’s pants pockets,
which they handed over to law enforcement. The paramedics
then transported defendant to a trauma center, where he was




                                 5
treated for a laceration to his left wrist, which punctured the
tendon and nerve, and a superficial wound to his neck.
       In the months following the attack, Hayley needed physical
therapy to regain use of her leg. It was four to six months before
she could stand on her leg without it giving out. She has
permanent scars on her neck, leg, and arm.
       B.    Defense Evidence
       Defendant’s cousin, Lisa Calderon, testified that she had
known defendant all his life. She had never known him to be
aggressive or violent, and she described him as passive, shy, and
soft-spoken.
       Defendant’s older brother, Brian Gustin, testified that
defendant was never violent or aggressive. He was timid and
introverted, and never got into trouble at school.
       Tiffany Sam testified that she worked with defendant’s
mother in a medical office. Defendant was a “constant fixture” in
the office, and had worked there in the summer of 2014 and
periodically thereafter. Defendant was always quiet, polite, and
friendly.
       C.    Procedural History
       The jury found defendant guilty of premeditated attempted
murder (Penal Code1 §§ 664, 187, subd. (a); count 1) and simple
mayhem (§ 203; count 2). It further found true that defendant
inflicted great bodily injury on Hayley and used a knife in the
commission of the offenses.
       The court sentenced defendant to a life sentence, plus six
years, on count 1, and to the high term of nine years, plus an
additional one year, on count 2. Defendant timely appealed.

1    All subsequent unspecified statutory references are to the
Penal Code.



                                6
                           DISCUSSION
      Defendant makes two contentions on appeal. First,
defendant contends the trial court prejudicially erred by
excluding a defense expert who would have testified that
defendant has a low-to-average IQ and suffers from borderline
personality disorder. Second, defendant contends the trial court
prejudicially erred by instructing the jury pursuant to CALCRIM
No. 601, which defendant urges is unconstitutionally vague. As
we explain, neither contention has merit.
                                  I.
      The Trial Court Did Not Abuse Its Discretion by
       Excluding the Testimony of Defendant’s Expert
      Defendant contends the trial court erred in excluding the
expert testimony of psychiatrist Gordon Plotkin. As we discuss,
the court did not abuse its discretion by excluding Dr. Plotkin’s
testimony, and any error was not prejudicial.
      A.     Additional Facts
      During trial, the court conducted an Evidence Code section
402 hearing regarding the proffered testimony of defense expert
Dr. Plotkin. Dr. Plotkin is a forensic psychiatrist, holds a
doctorate in biochemistry, and has worked as a consultant for the
Department of Mental Health doing mentally disordered offender
evaluations. Dr. Plotkin’s opinion was based on his interview of
defendant, as well as his review of police reports and defendant’s
school records.
      Dr. Plotkin opined, based on his review of defendant’s
school records, that defendant had a learning disability and an
IQ of 82, which put him just a few points above the cut-off for
mild intellectual disability. As a result of defendant’s learning
disability and low IQ, defendant consistently was about two years




                                7
behind grade level in math, reading, spelling, and verbal skills.
Dr. Plotkin explained that low-IQ individuals have difficulty
controlling their impulses because the frontal lobes of their
brains are not well developed. This affects executive functioning,
the ability to make choices, the ability to control impulses, and
the ability to reason abstractly.
       Dr. Plotkin also opined, based on his interview with
defendant, that defendant suffered from borderline personality
disorder. Individuals with borderline personality disorder are
“highly impulsive, they’re rejection sensitive, they’re emotionally
labile. They often feel empty. They can depersonalize when
stressed. They often have identity diffusion. They can base their
identity on who they’re with or what group they’re with, and
they’re relatively unstable individuals, difficult to treat.”
Dr. Plotkin’s diagnosis of borderline personality disorder was
based, in part, on defendant’s “statements . . . directly related to
the breakup, the relationship, his feelings about the breakup, his
statements about his feelings that he wasn’t being supported by
family members, that they weren’t understanding him, that the
victim was abandoning him, which was an especially strong
feeling that he was having at that time, which is all consistent
with that disorder.” The diagnosis was also based on defendant’s
history of emotional and physical abuse by his father, as well as
on defendant’s history of cutting himself, which “is almost
diagnostic for” borderline personality disorder.
       Finally, Dr. Plotkin opined, based on his interview with
defendant, that at the time of the incident, defendant was
suffering from major depression. That diagnosis was based on
defendant’s suicide attempt the day of the attack on Hayley, and
on his self-reported history of vegetative symptoms, including




                                 8
poor appetite, significant weight loss, sleep difficulties, and
feelings of anxiety and hopelessness.
       Defense counsel asked if Dr. Plotkin had an opinion
whether defendant’s low IQ and borderline personality disorder
would affect his ability to deliberate and premeditate.
Dr. Plotkin said he was “hesitant to use that wording because I
avoid that, generally speaking.” He opined, however, that
defendant’s mental condition, history, and presentation “are all
consistent with an individual who is very spontaneous, very
impulsive, very rejection sensitive, has a very strong feeling of
abandonment, [and] at the moment that he’s flooded with those
emotions can describe a dissociative reaction, which is exactly
what he described to me.” Dr. Plotkin believed those
characteristics “were profoundly significant in [the attack on
Hayley], and I think that kind of cluster, that crystallization of
all those factors at that time, had a profound effect.” Dr. Plotkin
further opined that defendant has deficits in his frontal lobe,
which affect impulsivity, the ability to inhibit reactions, and the
ability to think about behavior.
       After hearing argument, the court found that Dr. Plotkin’s
testimony was not admissible. First, the court said Dr. Plotkin’s
testimony was not relevant because it would not help the jury
determine whether defendant acted willfully, deliberately, and
with premeditation, which is “what the defense is offering his
testimony for.” The court noted that when Dr. Plotkin was asked
about defendant’s ability to deliberate or premeditate, “he started
off by saying ‘I wouldn’t use those words,’ and then he gave an
answer that really would not be helpful to the jury one way or the
other.” Second, Dr. Plotkin’s testimony was based entirely on
defendant’s out-of-court statements and school records, neither of




                                 9
which were before the jury. Thus, the jury would have no basis
on which to evaluate Dr. Plotkin’s opinion. Third, Dr. Plotkin’s
testimony was likely to consume undue time and to prejudice the
jury. The trial court therefore exercised its discretion to exclude
it under Evidence Code section 352.
      B.      The Trial Court Did Not Prejudicially Err by
              Excluding Dr. Plotkin’s Testimony
      Defendant contends the trial court prejudicially erred by
excluding Dr. Plotkin’s testimony. For the reasons that follow,
we disagree.
      Defendant sought to introduce Dr. Plotkin’s testimony with
regard to the allegation that defendant’s attack on Hayley was
willful, deliberate, and premeditated within the meaning of
Penal Code section 664. That section provides that an attempted
crime shall be punished by imprisonment for one-half the term
applicable to the completed crime, except that if the attempted
crime “is willful, deliberate, and premeditated murder, as defined
in Section 189, the person guilty of that attempt shall be
punished by imprisonment in the state prison for life with the
possibility of parole.” (§ 664, subd. (a).)
      “ ‘Willful’ means intentional; ‘premeditated’ means thought
over in advance; ‘deliberate’ means careful weighing of
considerations in forming a course of action. (See CALCRIM
No. 521; People v. Koontz (2002) 27 Cal.4th 1041, 1080.)” (People
v. Delgado (2017) 2 Cal.5th 544, 571.) “ ‘An intentional killing is
premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or
rash impulse.’ ” (People v. Pearson (2013) 56 Cal.4th 393, 443,
quoting People v. Stitely (2005) 35 Cal.4th 514, 543.)




                                10
       Only relevant evidence is admissible at trial. (Evid. Code,
§ 350.) In appropriate circumstances, evidence of a defendant’s
“mental disease, mental defect, or mental disorder” is relevant
and admissible “on the issue of whether or not the accused
actually formed a required specific intent, premeditated,
deliberated, or harbored malice aforethought, when a specific
intent crime is charged.” (§ 28.) Such evidence may be
introduced through an expert witness (§ 29), but expert
psychiatric testimony is admissible only if it assists the jury—
that is, if it is “[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the
trier of fact,” and “[b]ased on matter (including [the expert’s]
special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known
to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such
matter as a basis for his opinion.” (Evid. Code, § 801.) Whether a
defendant had or did not have the required mental state “shall be
decided by the trier of fact.” (§ 29.)
       The trial court has broad discretion in deciding whether to
admit or exclude expert testimony relevant to a defendant’s
mental state. (§ 28, subd. (d); People v. Jones (2013) 57 Cal.4th
899, 946.) The trial court’s decision as to whether expert
testimony meets the standard for admissibility is subject to
review for abuse of discretion, and we will not disturb the court’s
exercise of that discretion unless it acted in an arbitrary,
capricious or patently absurd manner. (Jones, at p. 946; People v.
McDowell (2012) 54 Cal.4th 395, 426.)




                                 11
        In the present case, the sole purpose for which defendant
sought to introduce Dr. Plotkin’s testimony was on the issue of
whether defendant’s attempted murder of Hayley was deliberate
and premeditated. Significantly, however, much of Dr. Plotkin’s
testimony—namely, that a person with borderline personality
disorder was likely to be “very rejection sensitive” and
“emotionally labile,” “feel empty,” have “very strong feeling[s] of
abandonment,” “have identity diffusion,” and have a “dissociative
reaction” when faced with rejection—would not have helped the
jury determine whether defendant planned to kill Hayley. At
best, these issues may have been relevant to explaining why
defendant responded so violently to being told that Hayley
intended to end their relationship. They were wholly irrelevant,
however, to whether defendant’s attack on Hayley was
premeditated.
        The only portion of Dr. Plotkin’s testimony that arguably
was relevant to deliberation and premeditation was his
statement that a person with defendant’s deficits was likely to be
“spontaneous” and “impulsive.” However, the trial court excluded
Dr. Plotkin’s testimony based on Evidence Code section 352.
Section 352 permits a court, in its discretion, to exclude evidence
if its probative value is substantially outweighed by the
probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
(Evid. Code, § 352.) Trial courts enjoy broad discretion under
section 352, and a trial court’s exercise of discretion “ ‘ “will not
be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” [Citation.]’




                                 12
[Citation.]” (People v. Snyder (2016) 1 Cal.App.5th 622, 632–
633.) Here, the trial court was well within its discretion in
concluding that the probative value of Dr. Plotkin’s testimony,
taken as a whole, was substantially outweighed by the likelihood
that that testimony would result in an undue consumption of
time and would confuse the jury.
       In any event, even assuming arguendo that the trial court
erroneously excluded Dr. Plotkin’s testimony, defendant is unable
to demonstrate that its exclusion constituted reversible error.
“Absent fundamental unfairness, state law error in admitting
evidence is subject to the traditional Watson test: The reviewing
court must ask whether it is reasonably probable the verdict
would have been more favorable to the defendant absent the
error.” (People v. Partida (2005) 37 Cal.4th 428, 439, citing
People v. Watson (1956) 46 Cal.2d 818, 836.)
       Here, the evidence that defendant planned the attack on
Hayley was overwhelming. The August 22 meeting occurred at
defendant’s suggestion: Defendant called Hayley and said that if
she would agree to see him one last time, he would not bother her
anymore. When he asked her to meet him, he offered to pick
Hayley up and suggested that they go to a Denny’s restaurant
near her house. Once Hayley got in the car, however, defendant
said he had changed his mind and wanted instead to park in a
residential neighborhood, which was unlikely to be heavily
populated in the middle of the day. And, unbeknownst to Hayley,
defendant came armed with two knives, which he concealed in
his pocket until the moment he attacked her.
       Defendant’s selection of a remote spot for the encounter
strongly suggests that defendant planned the attack. (See People
v. Elliot (2005) 37 Cal.4th 453, 471 [“ ‘the total vulnerability of




                                13
the victim and the evidence of a previously selected remote spot
for the killing do suggest planning’ ”].) So too does the fact that
defendant brought two knives to the encounter, “which makes it
‘reasonable to infer that he considered the possibility of homicide
from the outset.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1250
[fact that the defendant carried the fatal knife into victim’s home
was evidence of planning]; see also People v. Elliot, at p. 471 [that
defendant armed himself prior to the attack “ ‘supports the
inference that he planned a violent encounter’ ”].) Finally, that
defendant premeditated the attack on Hayley is strongly
suggested by her testimony that defendant reached across her
and locked the car door immediately before he began strangling
her, presumably to prevent her from escaping. All of this
evidence is consistent with a finding that defendant planned to
attack Hayley, and fundamentally inconsistent with a finding
that defendant acted spontaneously after hearing that Hayley
would not resume their relationship.
       Plainly, even a highly impulsive person may deliberate and
premeditate on some occasions. Because all of the evidence at
trial pointed to the fact that defendant premediated his attack on
Hayley, we conclude it was not reasonably probable that the jury
would have returned a different result had it heard Dr. Plotkin’s
testimony. Accordingly, the trial court did not prejudicially err
by excluding that testimony.
                                  II.
     CALCRIM No. 601 Is Not Unconstitutionally Vague
       In the present case, the trial court gave a CALCRIM
No. 601 instruction, as follows:
       “If you find the defendant guilty of attempted murder
under Count ONE, you must then decide whether the People




                                 14
have proved the additional allegation that the attempted murder
was done willfully, and with deliberation and premeditation.
       “The defendant acted willfully if he intended to kill when
he acted. The defendant deliberated if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the act of
attempted murder . . . .
       “The length of time the person spends considering whether
to kill does not alone determine whether the attempted killing is
deliberate and premeditated. The amount of time required for
deliberation and premeditation may vary from person to person
and according to the circumstances. A decision to kill made
rashly, impulsively, or without careful consideration of the choice
and its consequences is not deliberate and premeditated. On the
other hand, a cold, calculated decision to kill can be reached
quickly. The test is the extent of the reflection, not the length of
time.
       “The People have the burden of proving this allegation
beyond a reasonable doubt. If the People have not met this
burden, you must find this allegation has not been proved.”
       Defendant contends CALCRIM No. 601 is
unconstitutionally vague and ambiguous because it “was utterly
confusing and contradictory” and creates “uncertainty about what
conduct is willful, deliberate, and premeditated.” We review
defendant’s contention de novo. (See People v. Posey (2004)
32 Cal.4th 193, 218 [“The independent or de novo standard of
review is applicable in assessing whether instructions correctly
state the law”].)




                                15
        As defendant concedes, our Supreme Court has used the
very language adopted in CALCRIM No. 601 to define
premeditation and deliberation. In People v. Potts (2019)
6 Cal.5th 1012, the court said: “ ‘ “ ‘[P]remeditated’ means
‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived
at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of
action.’ ” ’ [Citation.] ‘ “An intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought
and reflection rather than unconsidered or rash impulse.” ’
[Citations.] ‘The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived
at quickly. . . .’ ” (Id. at p. 1027; see also People v. Pearson (2013)
56 Cal.4th 393, 443–444 [“The very definition of ‘premeditation’
encompasses the idea that a defendant thought about or
considered the act beforehand. ‘ “ ‘[P]remeditation’ means
thought over in advance,” ’ and ‘ “ ‘[d]eliberation” refers to careful
weighing of considerations in forming a course of action . . . .” ’
[Citation.] ‘An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’ ”]; People v. Mayfield
(1997) 14 Cal.4th 668, 767, citing CALJIC No. 8.20 with
approval, abrogated on other grounds in People v. Scott (2015)
61 Cal.4th 363, 390, fn. 2.)
        Notwithstanding our Supreme Court’s approval of language
nearly identical to that used in CALCRIM No. 601, defendant
urges we should find the instruction unconstitutionally vague.
Doing so would require us to reject our Supreme Court’s
precedent, which we are without the power to do. We therefore




                                  16
decline defendant’s invitation to find CALCRIM No. 601
unconstitutionally vague. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)2




2     Johnson v. United States (2015) 135 S.Ct. 2551, on which
defendant relies to suggest that the constitutionality of
CALCRIM No. 601 should be reevaluated, is inapposite. Johnson
concerned the federal Armed Career Criminal Act, 18 United
States Code section 924(e)(2)(B), and thus it has no bearing on
the issues before us.



                               17
                       DISPOSITION
     The judgment is affirmed.

    NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS




                                     EDMON, P. J.



We concur:




              EGERTON, J.




              DHANIDINA, J.




                          18
