Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, No. C55486 Thomas M. Goethals, Judge.
Deborah A. Kwast, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Assistant Public Defender, Brian T. Okamoto, Deputy Public Defender, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay, Linnea D. Piazza and Gregory Marcot, Deputy Attorneys General, for Respondent.
OPINION
MOORE, J.
Petitioner murdered Jeffrey Hohman on June 27, 1984, and was sentenced to 16 years to life in August 1985 for second degree murder and use of a deadly weapon. On April 14, 2009, at petitioner’s 11th parole hearing, the Board of Parole Hearings (the Board) found petitioner suitable for parole. The Governor reversed the Board’s decision. The Orange County Superior Court denied petitioner’s petition for a writ of habeas corpus. Petitioner subsequently filed a new petition in this court and we issued an order to show cause. We find there is no evidence from which the Governor can conclude petitioner poses an unreasonable risk of danger to society.
I
FACTS AND PROCEEDINGS
The Commitment Offense
Petitioner was convicted in 1985 of second degree murder and sentenced to 16 years to life for the murder and use of a deadly weapon. His two-year sentence for possession of a machine gun was ordered to run concurrently with the life sentence. The following quoted facts are from our unpublished opinion reviewing petitioner’s conviction in People v. Genniro (Jan. 17, 1987, G003216).
“On June 27, 1984, at approximately 11:00 p.m., [petitioner] was seen talking with Jeffrey Hohman at the bar of the Black Angus Restaurant. Hohman was seen to write something on a piece of paper, hand it to [petitioner] and ask [petitioner] to call him. They were together for approximately one-half hour before [petitioner] left the restaurant. Hohman left another one-half hour after that.
“Early the next morning Hohman was found dead on a sidewalk three miles from the restaurant. The cause of death was exsanguination resulting from over [40] stab wounds inflicted by a knife with a single edged blade three to four inches in length. Shod footprints were found in the blood surrounding the body and a napkin with the name ‘Tony G, ’ or ‘Tony H, ’ and a telephone number written on it was found in the victim’s clothing.”
The telephone number led the police to petitioner. Officers contacted petitioner where he was staying and searched his room, finding the murder weapon and a pair of boots believed to have dried blood on the soles. Outside the residence was a motorcycle with what appeared to be blood stains on the driver’s right foot peg. The dimensions of the kick stand were consistent with impressions found on the street near Hohman’s body. In addition to the evidence connecting petitioner to the murder, police also found an arsenal of weapons, including an Uzi.
The April 14, 2009 Parole Hearing
Petitioner’s 10th subsequent parole hearing was held on April 14, 2009. His last hearing had been in April 2008. Parole was denied at that time for one year and the Board recommended petitioner remain discipline free, participate in self-help programs, earn positive chronos, and firm up his parole plans. The Board noted at petitioner’s 2009 hearing that he had remained discipline free, earned positive chronos, participated extensively in self-help programs, and firmed up his parole plans, complying with the Board’s recommendations.
Chronos are reports from correctional officers. (In re Scott (2005) 133 Cal.App.4th 573, 582.)
Petitioner had but one disciplinary action during his entire incarceration in prison. That occurred in 2002. One commissioner found the 115 unusual, if not bizarre. It was for solicitation of bribery and involved a total of nine 43-cent stamps. Petitioner explained what happened. He was working as a special purchase clerk and an inmate he used for translating asked him to “drop off some stamps at R and R.” Petitioner said he broke his own cardinal rule and did not check what he had been handed. He opened up the item and saw the stamps, but he did not peal apart the Post-it note. He handed it to the clerk in R and R. An officer saw and asked petitioner what he handed the clerk. Petitioner said it was stamps. The Post-it note said to take a radio or some CDs off the books of the inmate who had given petitioner the stamps. Petitioner said the inmate was apparently attempting to get a new radio sent into prison. Petitioner said he did not know anything about it, but that he had been stupid in carrying the item to R and R. When petitioner went to his disciplinary hearing, he told the officer he would plead guilty and take full responsibility for what he did. Petitioner has received no 128’s while in prison.
A “115” form is used to document a serious rule violation within prison. (In re Reed (2009) 171 Cal.App.4th 1071, 1084.)
A “128” form is used to document minor misconduct. (In re Reed, supra, 171 Cal.App.4th at p. 1083.)
Petitioner earned an Associate of Science degree in Civil Engineering from Penn Foster College while incarcerated. He also received a vocational certificate for drafting, studied and took the test for the universal technician’s license for handling refrigerants and working on air conditioners, and obtained a certificate for automotive air conditioning. He learned Microsoft Office on his own and built Soledad’s disciplinary management system using Microsoft Access. In Chuckawalla, he designed “some minor programs for education that we use for records and for keeping track of all the inmates’ and the students’ scores on their tests.”
A commissioner noted petitioner earned extensive certificates. Petitioner pointed out the Board had before it only the certificates he obtained since his last parole denial. He was awarded certificates for numerous endeavors and classes. They include: September 2008 Alternatives to Violence class, various Catholic home study programs (including tutoring a veterans group in Catechism), July 2008 Toastmasters International, Alcoholics Anonymous (AA), June 2008 Understanding Borderline Personality Disorders and Addiction class, The Search for Happiness, a six-year certificate from AA, a distinguished Toastmasters award from Toastmasters International, and completion of a Friends Outside Parenting Program, which he took in 2003, and then took a second time so he could get a grandfather’s perspective. Petitioner also took a sign language class because his wife is hearing impaired. The same commissioner observed that it appeared there were a hundred certificates in petitioner’s file and that petitioner had been “very active in self-help studies.” Petitioner had “an impressive number of laudatory chronos” and has received exceptional ratings in his work supervisory report. He works as a teacher’s aid.
In November 2005, petitioner married a woman his sister used to babysit when they were younger. His wife visits him in California three to four times a year.
Petitioner testified about the murder. He said he came to California two weeks before the murder. He had been drinking all that day and met “Jeff, ” the victim, at the bar in the Black Angus restaurant. The victim heard petitioner’s accent and asked where he was from. Petitioner said he was from “South Philly, ” and the victim said he was from Lancaster, Pennsylvania. They had “a couple of beers” together and exchanged telephone numbers so they could “hang out together.” As petitioner was leaving, the victim asked him for a ride. Petitioner, who had 10 to 15 beers and maybe some shots of Jack Daniels that day, agreed to give him a ride.
About a mile from the restaurant, petitioner stopped for a red light and dropped his motorcycle because he was drunk. The victim was not responsible for the motorcycle falling. They picked up the motorcycle and continued on. At one point the victim asked petitioner to pull over so he could urinate. Petitioner drove into a cul-de-sac and stopped. The victim got off the motorcycle. Petitioner put it on its center stand and examined the motorcycle for possible damage. It had been vandalized the weekend before the murder and he wanted to see if dropping the motorcycle had caused more damage. Petitioner said he remembers being very angry at the time because he had dropped the motorcycle, he had lost his job approximately a year ago due to drinking, and his father had died 22 months earlier. Petitioner said he had been drinking heavily since his father’s death. He looked up from his motorcycle, saw a flash, and does not remember anything else, including how he got home.
Petitioner said he knows the killing was not in self-defense. He had originally assumed the killing must have been in self-defense, because that was the only thing that made sense to him as he was never violent before and has not been violent since. He said that prior to making his initial appearance before the Board, he did not know what to say because he did not remember what happened. He took the advice of those who told him to tell the Board what he believed happened, instead of telling the truth — that he did not remember what happened. He told that Board what he believed must have happened.
The Board asked petitioner when he came to realize the killing was not in self-defense. Petitioner said that in 2001 he became involved with the Impact Group while imprisoned in Soledad. In that program, victims explained what they went through and petitioner realized he had to tell the Board the truth. That conclusion was apparently confirmed by his attorney who told petitioner to tell the Board what he remembers and to tell the Board when he does not remember something.
Petitioner said killing the victim because he was drunk and angry was “terrible and inexcusable, ” because he not only took the victim’s life, but also took the victim away from his parents, brother, and family members. Although petitioner once thought his sentence was unfair because the murder was committed when he was drunk, he no longer feels that way. Rather, in the last five to 10 years he came to believe he must “earn [his] way back into society.”
When the police arrived and showed petitioner a photograph of the victim, petitioner did not remember him. He said the police asked him if he carried a knife. He said he did, and when the police asked him to get it, he did as requested and gave it to the police. He said his reluctance to let the police search was based upon the fact that he had an Uzi under his bed. He had an arsenal of weapons including a Ruger.22-caliber automatic, a Walther PP.380-caliber automatic, an Excam.38-caliber two-shot, a short arm.44-caliber revolver, a Smith and Wesson.38-caliber, a Colt.32-caliber automatic, an 870 Remington 12-guage shotgun, an HK 91.308-caliber weapon, and two Marlin.22-caliber level action rifles. Petitioner said he played with guns. He explained how he acquired the Uzi. He bought it as a carbine and when he was at the Soldier of Fortune Convention in 1983, he bought parts to modify it into an Uzi. He said it was stupid, but he did not have a malicious intent in doing it.
A commissioner said that someone with that many weapons and who attended a Soldier of Fortune convention could be considered a mercenary. Petitioner agreed and said he wasted “a lot of money” on the weapons. He admitted he also wasted a lot of money on alcohol.
Petitioner said he is remorseful about what happened. He prays for the victim every night. He said the concept of remorse has changed him. He has since learned his triggers are impatience and, at the time, the inability to see two sides to a situation. He also carried around guilt connected with his father’s death. He was supposed to work for his father one weekend and instead of telling his father he had to go to a wedding with his girlfriend, petitioner said he had a reserve meeting that weekend. His father died that Saturday night.
Petitioner had served in the Marine Corps and been honorably discharged.
He has been involved in AA since 1988. He learned that he is powerless over alcohol and believes he is one of the few people who cannot have any alcohol. Petitioner lined up AA sponsors in California and New Jersey, in the event he is paroled to New Jersey.
He has parole plans for California and New Jersey. He has been preapproved for a transfer to New Jersey, and is waiting for approval for a transfer to Pennsylvania as well. Authorities in New Jersey visited his wife’s house and informed her petitioner would be under house arrest with electronic monitoring for the first 90 days of parole. He would be allowed to leave the house to go to work and his AA meetings.
In the event he paroles to California, petitioner has arranged to reside at the Newport Harbor Recovery. Petitioner has arranged to cover the cost of staying at the recovery residence. His wife has set up an account with $4,500 to cover the expense. Additionally, petitioner’s AA sponsor arranged for the payment of petitioner’s first two months in the residence. He would spend the first 30 days of parole in a halfway house. Once he has completed the initial 30 days in the halfway house, D. Wards of the residence will help petitioner find a job. Petitioner has alternative residences set up in California.
His family lives in Pennsylvania and New Jersey. He has residences available to him in both locations. He also has a sponsor available for the Philadelphia/New Jersey area. The counselor who prepared the life inmate evaluation concluded petitioner “has good solid parole plans.”
The correctional counselor’s report favors parole. It states that petitioner’s job performance has been exceptional. A commissioner referred to it as a favorable report. In the report, petitioner said he did not remember pulling his knife, stabbing the victim, or how he got home that night. He woke up the next afternoon sore, but did not recall what had happened.
Petitioner’s Axis I diagnosis is alcohol dependence in full institutional remission. There is no Axis II diagnosis. In Axis V, petitioner scored a 90, very high, in the Global Assessment of Functioning. A commissioner noted anything in the high 70’s indicates the inmate is doing very well in prison.
The counselor’s report finds petitioner has a low risk for future violence. Petitioner attributes the counselor’s conclusion that he has “some” insight and “some” remorse to his not having been as clear as he should have been with the counselor, due to the fact that his cousin had died the day before his meeting with the counselor and he had not expected to have an appointment with the counselor that day.
A commissioner noted the report concluded petitioner’s parole plans are sound and that “[t]here is no evidence that he will not be able to abide by the regulations of parole and his motivation to do so is very good.” The Board granted petitioner parole.
The Governor’s Reversal
The Governor reversed the Board’s decision in September 2009. The Governor considered “various positive factors” in determining petitioner’s suitability for parole, including his college studies, jobs he held in prison, self-help and therapy classes he took, his tutoring of other inmates, and the “favorable evaluations from various correctional and mental-health professionals over the years.” The Governor also considered petitioners “seemingly solid relationships and close ties with family” as well as his parole plans.
Notwithstanding those factors, the Governor reversed the Board’s decision. The Governor stated the second degree murder “was especially atrocious because [petitioner’s victim] was intoxicated and was thus particularly vulnerable.... [Petitioner’s] actions demonstrated an exceptionally callous disregard for human life and suffering.” Although petitioner has accepted responsibility, the Governor concluded petitioner “has still failed to obtain insight into his violent behavior.” That conclusion was based on the fact that petitioner initially told the probation officer he was very intoxicated on the night of the murder and had been taking Quaaludes; that he did not feel he was capable of such actions, and that the victim may have set him up; that petitioner told his 1988 and 1991 mental-health evaluators the victim pulled a knife on him; that petitioner claimed in 1992 that he acted in self-defense, but was not on Quaaludes at the time; in 1995 and 2001, petitioner again claimed he acted in self-defense; in 2002, petitioner told his mental-health evaluator he saw something in the victim’s hand, something flashed, and he reacted; petitioner told the Board in 2002, he saw something in the victim’s hand; in 2007, petitioner told the Board his memory of the murder was “sketchy at best;” in 2008, he told the Board he did not remember anything after seeing something flash, that he was trying to “piec[e] it together;” and that in 2009, he told the Board he saw a flash and does not recall anything after that.
The Governor concluded “[t]he fact that [petitioner] still attempts to minimize his actions in the life offense and that he has continuously characterized his actions as self-defense indicates that he has still not gained sufficient insight into or accepted full responsibility for the life offense. His lack of insight renders the life offense still relevant to my determination that [petitioner] continues to pose a current, unreasonable risk to public safety because [petitioner] cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for his offense.”
Also noted by the Governor was the 2008 mental health evaluation. The evaluator stated petitioner appears to have “some remorse, ” but appeared “slightly superficial when discussing the victim, and in fact, did not speak about the victim very much at all.” The evaluator stated petitioner only has “some insight into the crime.” When asked if he thought his punishment was fair, petitioner said, “Personally, I think it was unfair — I was drunk when this happened. That was no excuse.” The Governor found this was further evidence petitioner has not come to terms with his role in the murder and that until petitioner “gains better insight... he continues to pose a risk of violence to the community.”
Additionally, the Governor noted petitioner’s 2002 rules violation in prison. The Governor stated the gravity of the crime supports his decision to reverse the Board’s decision granting parole, but that he was “particularly concerned that [petitioner] still minimizes his prior criminal conduct, that he has not accepted full responsibility for [the murder] and that he is either unwilling or unable to conform his conduct to the rules.” The Governor added that he was “also troubled by the concerns expressed in [petitioner’s] most recent mental-health evaluation. This evidence indicates to me that [petitioner] still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.”
II
DISCUSSION
A governor’s decision reversing a decision of the Board must be “on the basis of the same factors which the parole authority is required to consider.” (Cal. Const., art. V, § 8, subd. (b).) Those factors are found in Title 15, section 2281 of the California Code of Regulations. That regulation “is designed to guide the Board’s assessment of whether the inmate poses ‘an unreasonable risk of danger to society if released from prison.’” (In re Lawrence (2008) 44 Cal.4th 1181, 1202.)
“[T]he judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects ‘an individualized consideration of the specified criteria’ and is not ‘arbitrary and capricious.’ [Citation.]” (In re Lawrence, supra, 44 Cal.4th at p. 1205.) We uphold the Governor’s decision if it is supported by some evidence that “the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Id. at p. 1212.) “‘[A]s long as the Governor’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.’ [Citation.] This standard is unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness. ‘It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law.’ [Citation.]” (Id. at p. 1210.)
The Governor reversed the Board’s decision granting parole in petitioner’s matter, finding the underlying murder “was especially atrocious because his victim was intoxicated and was thus particularly vulnerable.” All indications are victim and petitioner were both intoxicated. They met in a bar and left on petitioner’s motorcycle. In fact, shortly before the murder petitioner dropped his motorcycle at a stop light because he, too, was intoxicated.
“[T]he aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness.” (In re Shaputis (2008) 44 Cal.4th 1241, 1254.) “Accordingly, ‘the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense.’” (Id. at pp. 1254-1255, quoting In re Lawrence, supra, 44 Cal.4th at p. 1221.)
The record indicates petitioner had been drinking heavily for some time prior to the murder. He also appears to have been carrying around anger and guilt about his father’s death. Since the murder, petitioner has demonstrated remorse for his actions and claims the concept of remorse has changed him. He has learned his triggers and rehabilitated himself, earning a degree in civil engineering and certificates in drafting and automotive air conditioning. He has been involved in AA since 1988, has his 24-year chip representing 24 years of abstinence from alcohol, and has concluded he is an individual who cannot consume any alcohol. Petitioner’s only Axis I diagnosis is alcohol dependence in full institutional remission. He has arranged AA sponsors in California, as well as New Jersey, in the event he is paroled there. He prepared what the Board considered to be a “tremendous relapse prevention plan.” When asked by the Board where he would go or who he would turn to if he felt weak and wanted a drink, without any apparent hesitation petitioner named a list of people he would seek out so that even if the first person was not available he still had an impressive number of people to whom he would turn.
Of course, petitioner has been incarcerated for that period of time, but alcohol can be obtained in prison, and attending for 24 years would tend to indicate genuine commitment, even if it weren’t.
His job performance in prison has been excellent and he has received “an impressive number of laudatory chronos” in prison. Of those, he received 75 since he was denied parole in 2008. He has taken anger management courses, as well as courses on alternatives to violence.
We agree with the Board’s conclusion that given all petitioner has done since his incarceration, there is no nexus between the murder and the issue of current dangerousness. Were this a much earlier parole hearing, we might agree the facts demonstrate the commitment offense was particularly aggravated and constitute “some evidence” of current dangerousness. (See In re Bettencourt (2007) 156 Cal.App.4th 780, 800.) But this was not petitioner’s first parole hearing, or even his second or third. It was his 11th. By the time the Governor reversed the Board’s decision, petitioner had served more than the minimum term of imprisonment he would have been required to serve had he been convicted of first, not second, degree murder. Nothing in this record indicates a connection between the second degree murder in 1984, a crime committed over 25 years ago, and “his state of current dangerousness today.” (In re Gomez (2010) 190 Cal.App.4th 1291, 1308.)
Petitioner does not have any Axis II diagnosis. We therefore need not decide whether the facts of the crime could continue to constitute some evidence of dangerousness if a life prisoner has, for example, an antisocial personality disorder.
The Governor determined petitioner lacks insight into his crime because he gave differing versions of the events over the years. Petitioner has, however, accepted full responsibility for his actions. Although he initially claimed the killing was in self-defense, he has since admitted it was not. He further stated he made his past statements regarding self-defense because he could not remember the killing and did not believe himself capable of such a killing unless it was in self-defense. He subsequently realized he was and has faced up to that fact, admitting he must “earn [his] way back into society.” He has. The Governor’s reliance on petitioner’s lack of insight after he has fully acknowledged his guilt has transformed this into an immutable factor, effectively transmuting petitioner’s sentence into life without the possibility of parole. (In re Gomez, supra, 190 Cal.App.4th at p. 1308.)
Statements in petitioner’s last mental health evaluation do not, contrary to the Governor’s assertion, demonstrate petitioner “has not yet come to terms with his role in the offense and that he is more concerned about how [the victim’s] murder has impacted him rather than how it impacted the victim.” That petitioner has “only ‘some insight into the crime’” does not appear to have surprised the evaluator given the fact petitioner does not remember the crime. The evaluator noted, however, that is “not to say that [petitioner] has not worked to better understand himself.” Defendant told the evaluator he had “thought about this long and hard, about the pain I caused [the victim] and his family.” Petitioner expounded on that statement at his 2009 parole hearing. After stating that what he did was “terrible and inexcusable, ” that he recognizes the impact his actions had on the victim’s family as well as the victim, petitioner said, “A couple of years ago I went out to the hospital for a kidney stone... and for eight days I [lay] awake chained to a bed in pain, and I realized at that point just how much pain I must’ve caused [the victim]. Because up until that point I had never really experienced any physical pain to that extent. And at that time I [lay] awake, not thinking about the pain that I was in, but actually about the pain that I caused him.”
As one of the commissioners noted, there is “no way that [petitioner] may be able to realize exactly what took place” because of his intoxicated state at the time of the murder. Like the petitioner in In re Gomez, supra, 190 Cal.App.4th 1291, who also killed someone with a knife while intoxicated and who apparently did not want to accept the fact that he had killed (id. at pp. 1298, 1302), petitioner has, through time, accepted that fact. That he does not remember the details of the crime — like the facts of the crime itself — cannot, given his documented efforts at self-improvement and reform, be turned into an immutable fact justifying a conclusion that he continues to present an unreasonable risk of danger to society.
Lastly, the Governor stated he was “troubled” by the fact that petitioner was disciplined in 2002, seven years before the Governor’s decision to reverse the Board’s parole grant. Although the conduct involved a total of nine 43-cent stamps, it was a serious violation. However, it occurred seven years earlier and it did not involve violence or the threat of violence. Defendant immediately accepted responsibility for his conduct and vowed not to let something like that happen again. It did not. The Governor’s reversal of the Board’s decision does not set forth any nexus between petitioner’s passing of the note and stamps and petitioner posing an unreasonable risk of danger to the public if released on parole. (See In re Hare (2010) 189 Cal.App.4th 1278, 1282 [possession in prison of toothbrush altered in same manner as two other weapons found in the prison constituted some evidence the inmate continued to pose threat to public safety].)
We find there is no evidence from which the Governor can conclude petitioner poses an unreasonable risk of danger to society. Accordingly we vacate the Governor’s reversal of the Board’s decision and reinstate the Board’s decision granting petitioner parole.
The Governor concluded his decision reversing the Board as follows: “At age 43, now after being incarcerated for more than 20 years, Genniro has made credible gains in prison. But given the current record before me, and after carefully considering the very same factors the Board must consider, I believe his release would pose an unreasonable risk of danger to society at this time.” Petitioner was not 43 years old at the time of the Governor’s reversal. He was 49 years old, just a few months shy of his 50th birthday. And he had not merely been incarcerated for “more than 20 years, ” he had spent more than 25 years in custody. While experience demonstrates past reversals of Board decisions granting parole follow a certain format and the last paragraph of the decision reversing the Board’s decision have been exactly the same in certain cases — the name and age of the inmate, as well as the years spent in prison altered — we hesitate to conclude the last paragraph in petitioner’s case was copied and pasted from another reversal, with only the inmate’s name changed. It does, however, cause pause as to whether an inmate received “individualized consideration” of all relevant factors. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)
III
DISPOSITION
The governor’s decision reversing the Board’s 2009 decision granting petitioner parole is vacated and the Board’s determination is reinstated.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.