J.T. v.
Obispo County
Filed 2/25/13 J.T. v. San Luis Obispo County Bd. of Educ. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
J.T.,
Plaintiff and
Appellant,
v.
SAN LUIS OBISPO
COUNTY BOARD OF EDUCATION et al.,
Defendants and
Respondents.
2d Civil No.
B241026
(Super. Ct.
No. CV110352)
(San
Luis Obispo County)
J.T. appeals a judgment
denying his petition for writ of
administrative mandate (Code Civ. Proc., § 1094.5) seeking to overturn
decisions to expel him from school by the San Luis Obispo County Board of Education
(the County Board) and the San Luis Obispo Coastal Unified School District (the
District). We conclude, among other
things: 1) the trial court did not
err by finding J.T. committed sexual acts against a female student, which
authorized the County Board and the District to expel him; 2) admissions J.T.
made to school authorities about the incident were admissible and
3) the victim's declaration was admissible; and 4) J.T. was not entitled to a
reversal because of alleged notice deficiencies. We affirm.
FACTS
J.T. and a female
student had a prior relationship. They
were students at a high school in the District.
She submitted a declaration to the District claiming J.T. sexually assaulted
her. In that declaration, she said that
at the end of her sixth period class J.T. said he "wanted" her to
"hang out with him." She said
she would be "hanging out" with her friends at the teen center near
school. She walked to her locker. J.T. followed her. She asked him if he was following her. When he said he was, she called him "a
creep." She said, "I opened my
locker and put everything inside rather than picking through what I needed for
homework because I felt like it would get me out a little faster."
The student and J.T.
went to the teen center near school. The
student was waiting for calls from the friends she expected to meet there. But her friend called to say "they
weren't going to make it." J.T.
placed his hands on her thigh and "over [her] shirt." She moved away from him and said she
"didn't want to have sex with him again." She started to leave. He asked her "to have sex with [him]
again." She said, "[N]o."
The student walked away
in the direction of her mother's place of work to wait for a ride "to go
home." J.T. followed her. He grabbed her hands and "started
pulling [her] down [a] bike path."
She tried to break free and get help from motorists who were passing
by. Nobody stopped. J.T. grabbed her around the waist, pushed her
in the direction of a bridge and "pinned [her] to the side of
it." He "reached down the back
of [her] pants multiple times." He
reached "into [her] shirt and touched [her] breasts" multiple
times. She ran down the bike path and
called her father to take her home.
J.T. was arrested for
sexual battery and taken into custody on January 12, 2011.
On January 28, 2011, the District recommended that
J.T be expelled. It sent a notice of an
expulsion hearing before the District's Board of Education.
On February 15, 2011, the District's Board of
Education conducted an evidentiary hearing in closed session. J.T. elected not to testify. He was represented by the "Executive
Director of CASA, Court Appointed Special Advocates" who decided not to
call any witnesses on J.T.'s behalf. The
high school principal testified that in an interview at school J.T. admitted to
the dean of students and a police officer that he touched the female student in
her "private areas despite her protestations and the fact that she said
'no,' 'don't touch me,' and 'leave me alone.'" He admitted to "repeatedly asking her to
have sex with him." J.T. did not
receive Miranda advisements before
making these statements at school. The
dean of students testified this was "an interview" and J.T.
"wasn't arrested at that point."
The student victim did not testify at the hearing. Her declaration was admitted into
evidence. The District's board voted to
expel J.T.
J.T. appealed the
expulsion decision to the County Board.
It upheld the expulsion and found J.T.'s "acts began on school
grounds and culminated in the sexual battery while the victim and [J.T.] were
returning home from school."
J.T. filed a petition
for writ of administrative mandate against the District and the County
Board. The superior court entered
judgment against J.T. It found, among
other things: 1) the evidence in the
decision to expel him, 2) J.T.'s statements to school officials were properly
admitted as evidence, 3) the victim's declaration was properly admitted
consistent with the Education Code procedure for expulsions, and 4) J.T.
received adequate notice of the expulsion hearing.
DISCUSSION
Substantial
Evidence
J.T. contends the
judgment must be reversed because his actions did not fall within the statutory
grounds for expulsion. He claims there
is no substantial evidence supporting the judgment. We disagree.
In reviewing an
administrative decision, the trial court exercises its independent judgment on
the evidence in the administrative record.
(Bassett Unified
Competence (1988) 201 Cal.App.3d 1444, 1450.) In reviewing the sufficiency of the evidence,
the appellate court does not weigh the evidence or decide credibility. It determines whether substantial evidence
supports the trial court's judgment. (
1642, 1647; Church of
America, Inc. (1960) 184 Cal.App.2d 851, 856.) Consequently, we look to the
evidence supporting the court's findings and draw all reasonable inferences to
support the judgment. (
(1955) 45 Cal.2d 501, 508.)
Education Code section
48900
provides, in relevant part, "A pupil shall not be suspended from school or
recommended for expulsion, unless the superintendent of the school district or
the principal of the school in which the pupil is enrolled determines that the
pupil has committed an act as defined pursuant to subdivisions (a) to (r),
inclusive." One of the prohibited
acts in subdivision (n) includes a student who has "[c]ommitted or
attempted to commit a sexual assault . . . or committed a sexual battery . . . ." (Id.,
subd. (n).)
Here the trial court
found J.T. "committed [a] sexual battery" and a sexual assault on a
female student. These findings are
supported by the record.
J.T. argues that his
acts were "not related to a school activity" and did not fall within
section 48900. We disagree.
Section 48900,
subdivision (s) provides, in relevant part, "A pupil shall not be
suspended or expelled for any of the acts enumerated in this section unless the
act is related to a school activity or school attendance occurring within a
school under the jurisdiction of the superintended of the school district or
principal or occurring within any other school district. A pupil may be suspended or expelled for acts
that are enumerated in this section and related to a school activity or school
attendance that occur at any time,
including, but not limited to, any of the following: [¶]
(1) While on school grounds. [¶]
(2) While going to or coming from
school. . . ."
(Italics added.)
J.T. claims that his
sexual battery took place after he and the female student stopped at the teen
center. He argues that it consequently
occurred while they were "coming from the Teen Center," not
"coming from school." (Italics
omitted.) Respondents claim J.T.'s
argument omits where his conduct originated and the victim's ultimate destination.
The trial court found
J.T.'s "sexual assault commenced at school when [J.T.] approached the
Student with the purpose of obtaining a sexual encounter." J.T. "followed" her, and his
"conduct started at school and ended with the sexual assault on the bike
path all while the Student was making her
way home." (Italics added.)
These findings are
supported by the record. The trial court
could reasonably infer J.T.'s admissions showed he had a sexual motive, that he
was not concerned with the victim's "protestations," and it could
rely on the dean of students' testimony that this incident "started in a
classroom." In addition, in her
declaration, the victim said that at the end of her sixth period class, J.T.
said he "wanted" her to "hang out with him." She declined and said she would be
"hanging out" with her friends.
He followed her as she walked to her school locker. She asked him if he was following her. He admitted he was. She called him "a creep." A reasonable inference is that she was intimidated
by his conduct at school. She said she
"opened [her] locker and put everything inside rather than picking through
what I needed for homework because I felt
like it would get me out a little faster." (Italics added.)
J.T. notes that he and
the victim stopped at the teen center.
The trial court found "there is no evidence that the Student
actually went into the Teen Center."
The dean of students testified they were "outdoors at the Teen
Center." The victim intended to
meet her friends there. But they called
to say they were not coming. The court
viewed the teen center, which is adjacent to the school, to be a temporary stop
on the way to the victim's ultimate destination - her home. There is evidence to support that
finding. At the hearing the principal
testified the victim's "normal trip home was to go to the Teen Center, and
then go meet her mom at work and then get a ride home." He said she "was still on her way home
from school" when she was sexually assaulted and the teen center is
"on the way home." The dean of
students testified that J.T. was also "on his way home" because the
sexual assault occurred before he received his ride to the youth transitional
program where he was living. The court
said, "It would be too narrow of a statutory interpretation to conclude
that the Student's stopping at the Teen Center terminated the coming from
school jurisdiction."
The trial court was
correct. The statutory goal is to
protect the safety of students. (
Clara County Bd. of Education (1991)
235 Cal.App.3d 1182, 1187 [expulsion is an administrative penalty
"designed to promote student safety"].) The broad statutory language shows the
legislative intent to protect students from being victimized by classmates
after school as they are vulnerable before they reach the safety of their
homes. To achieve this goal, section
48900 prohibits a broad range of conduct, including sexual assaults (subd.
(n)), using force or violence against another student (subd. (a)(2)),
"obscene" acts (subd. (i)), "hazing" (subd. (q)),
"bullying" (subd. (r)(1)), and conduct that would cause "a
reasonable pupil to experience a substantially detrimental effect on his or her
physical or mental health" (subd. (r)(1)(B)). Students have a right to be protected from
sexual harassment and unwanted sexual advances by their classmates. (Granowitz
v. Redlands Unified School Dist.
(2003) 105 Cal.App.4th 349, 357.) The
court could reasonably infer the victim was subject to a pattern of sexual
harassment that began at school and ended with a sexual assault on her way home
from school. Consequently, she was
within the zone of protection intended by the Legislature. J.T.'s continuing course of conduct, which
began at school, falls within the scope of prohibited acts envisioned by
section 48900. The evidence is
sufficient.
School Authorities
J.T. claims his
statements to the dean of students about the incident had to be excluded
because he was not advised of his Miranda
rights before answering questions.
The trial court found
J.T. waived this issue because his hearing advocate "failed to object to
[the principal's] testimony at the District's hearing." That finding is supported by the record. At the administrative hearing, when the
principal testified about J.T.'s statements, his advocate made no objection and
did not move to strike any portion of that testimony. That constituted a waiver of this issue. (Harris
Transportation Co. v. Air Resources Board (1995) 32 Cal.App.4th 1472,
1480.)
But even on the merits,
the result is the same. J.T. was not
given a Miranda advisement when he
was questioned about the incident at school.
But it is well established that the Miranda
exclusionary rule that applies to criminal cases is not applicable to high
school disciplinary proceedings. (
(1984) 162 Cal.App.3d 530, 531.)
J.T. contends the school
principal's testimony about what J.T. said about the incident should have been
excluded as inadmissible hearsay. But this testimony about J.T.'s statements
constituted admissions. J.T. confirmed
that he had sexually battered the victim.
The trial court did not err by considering this as admissible
evidence. It was properly admitted as an
exception to the hearsay rule for admissions of an adverse party. (Evid. Code, § 1220;
301, 325; Szmaciarz v. State Personnel
Board (1978) 79 Cal.App.3d 904, 913 ["Since the hearsay evidence would
have been admissible over an objection based on hearsay in a civil action, this
evidence may support a finding of fact"].)
J.T. contends the trial
court erred by considering the victim's declaration. He argues:
1) it was inadmissible hearsay, and 2) it did not fall within the good
cause exception requirements of section 48918, subdivision (f).
Respondents claim these
issues were waived because J.T.'s advocate did not raise these objections at
the hearing. The trial court noted that
his lawyer sent a letter objecting to "the introduction" of
"declarations on the grounds they are hearsay." But respondents are correct that no objection
was made on the ground that the declaration should have been excluded for not
meeting the good cause exception requirements of section 48918. Consequently, that issue was waived. (Harris
Transportation Co. v Air Resources
Board, supra, 32 Cal.App.4th at
p. 1480.) But the result is the
same on the merits.
The trial court found
the victim's declaration was properly admitted consistent with the Education
Code procedure for expulsion hearings.
The court did not err.
Section 48918,
subdivision (f) provides, in relevant part, "The governing board
. . . may, upon a finding that good cause exists, determine that the
disclosure of either the identity of a witness or the testimony of that witness
at the hearing, or both, would subject the witness to an unreasonable
Upon this determination, the testimony of
the witness may be presented at the
hearing in the form of sworn declarations . . . ." (Italics added.)
At the hearing the
principal requested that the victim's declaration be admitted under the good
cause exception. He testified that she
"signed an affidavit of fear, that presenting her testimony here in person
would cause psychological or physical damage . . . ." The victim was subjected to a sexual
assault. The principal testified,
"[T]he presence of [J.T.] causes a continuing danger to the physical
safety of the [victim] . . . ." J.T. presented no evidence to contradict that
testimony. Moreover, even without the
victim's declaration, J.T. has not shown how the result would change. The triers of fact had J.T.'s admissions of
sexual battery that supported the decision to expel him. They had the testimony of the principal and
the dean which was also admitted at the hearing without any objection by J.T.'s
CASA advocate.
J.T. contends the
judgment must be vacated because he did not receive adequate notice of the
expulsion hearing. He claims he was not
given 10 days' notice as required by section 48918, subdivision (b).
The trial court rejected
these claims and J.T. has not shown error.
The administrative record reflects that a "notice of recommendation
for expulsion and expulsion hearing before the Board of Education" was
sent to M.H., J.T.'s legal guardian, on January 28, 2011. The hearing was scheduled for February 7, 2001. The court found that because J.T. was
unavailable, that hearing was continued "to February 15, 2011 to ensure
that [J.T.] and his representatives had adequate notice of the hearing."
At the February 15th
hearing, J.T.'s CASA advocate made no objection that there was insufficient
notice. She did not request a
continuance or claim that she had insufficient time to prepare. She proceeded to represent J.T. regarding the
merits of the expulsion. (
(2002) 103 Cal.App.4th 1349, 1375 [proceeding on the merits constitutes a
waiver of notice deficiencies].)
J.T. claims the District
did not send the packet of information about the hearing which is required by
section 48918, subdivision (b). But the
record reflects the required information packet was included with the January
28th notice.
We have reviewed J.T.'s
remaining contentions and we conclude he has not shown error.
The judgment is
affirmed. Costs on appeal are awarded in
favor of respondents.
NOT TO BE PUBLISHED.
GILBERT,
P. J.
We concur:
YEGAN, J.
PERREN, J.
Dodie
A. Harman, Judge
Superior
Court County of San Luis Obispo
______________________________
Dustin M. Tardiff, Neil
S. Tardiff for Plaintiff and Appellant.
Kronick, Moskovitz, Tiedemann
& Girard, Roman J. Munoz, Chelsea R. Olson, Jennifer G.V. Espanol for
Defendant and Respondent San Luis Obispo County Board of Education.
Lozano Smith, Daniel A.
Osher, Sloan R. Simmons for Defendant and Respondent San Luis Coastal Unified
School District.
name="_ftn1" title="">[1] All statutory references are to the Education
Code unless otherwise stated.
