1 of 5

TO BE PUBLISHED IN THE OFFICIAL REPORTS 

OFFICE OF THE ATTORNEY GENERAL 

State of California 

DANIEL E. LUNGREN 

Attorney General 

______________________________________

OPINION :

: No. 96-906 

of :

: April 24, 1997

DANIEL E. LUNGREN :

Attorney General :

:

ANTHONY M. SUMMERS :

Deputy Attorney General :

:

______________________________________________________________________

 THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA SENATE, has

requested an opinion on the following questions:

 1. Under what circumstances may a pupil be expelled from school for "possessing" a

firearm?

 2. What circumstances constitute an abuse of discretion by a county board of education in

reversing the decision of a governing board of a school district to expel a pupil?

 3. May the governing board of a school district seek judicial review of a decision of the

county board of education reversing the district board's decision to expel a pupil?

CONCLUSIONS

 1. A pupil may be expelled from school for "possessing" a firearm if the pupil knowingly

and voluntarily has direct control over the firearm. The only exceptions are where the pupil has the

permission of school officials to possess the firearm or where the possession is brief and solely for the

purpose of disposing of the firearm such as handing it to school officials.

 2. A county board of education abuses its discretion in reversing the decision of a

governing board of a school district to expel a pupil if it does not comply with the statutory requirements

applicable to such review.

 3. The governing board of a school district may seek judicial review of a decision of the

county board of education reversing the district board's decision to expel a pupil.

ANALYSIS

 The Legislature has enacted a comprehensive statutory scheme (Ed. Code, §§ 48900-48926)

Footnote No. 1 governing the suspension and expulsion of pupils from elementary and secondary schools.
2 of 5

"Suspension" is the "removal of a pupil from ongoing instruction for adjustment purposes. . . ." (§ 48925,

sub. (d).) "Expulsion" is the "removal of a pupil from (1) the immediate supervision and control, or (2) the

general supervision, of school personnel. . . ." (§ 48925, subd. (b).)

 The three questions presented for resolution concern the expulsion of a pupil for possessing

a firearm on school property. What does "possession" mean, when does a county board of education abuse its

discretion in reversing a school board's decision to expel a pupil, and may the school board seek judicial

review of the county board's decision?

 1. "Possession" of a Firearm

Section 48900 states in part:

 "A pupil may not be suspended from school or recommended for expulsion

unless the superintendent or the principal of the school in which the pupil is enrolled determines

that the pupil has:

 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 "(b) Possessed, sold, or otherwise furnished any firearm, knife, explosive, or

other dangerous object unless, in the case of possession of any object of this type, the pupil had

obtained written permission to possess the item from a certificated school employee, which is

concurred in by the principal or the designee of the principal.

 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 "A pupil may not be suspended or expelled for any of the acts enumerated

unless that act is related to school activity or school attendance occurring within a school under

the jurisdiction of the superintendent or principal or occurring within any other school district.

 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Section 48915 provides in part:

 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 "(c) The principal or superintendent of schools shall immediately suspend,

pursuant to Section 48911, and shall recommend expulsion of a pupil that he or she determines

has committed any of the following acts at school or at a school activity off school grounds.

 "(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision

does not apply to an act of possessing a firearm if the pupil had obtained prior written permission

to possess a firearm from a certificated school employee, which is concurred in by the principal

or the designee of the principal. This subdivision applies to an act of possessing a firearm only if

the possession is verified by an employee of a school district.

 ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

The first question concerns the meaning of the terms "possessed" and "possessing" in sections 48900 and

48915 as they related to the possession of a firearm.

 In addressing this question, we rely on well established principles of statutory construction.

We are to interpret statutes so as to effectuate the intent of the Legislature. (Brown v. Kelly Broadcasting Co.

(1989) 48 Cal 3d 711 724 ) "In doing so we turn first to the statutory language since the words the
3 of 5

(1989) 48 Cal.3d 711, 724.) In doing so we turn first to the statutory language, since the words the

Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange

County Employees Retirement System (1993) 6 Cal.4th 821, 826.) The words of a statute are to be given

"their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "Statutes are to

be given a reasonable and commonsense interpretation . . . ." (Dyna-Med, Inc. v. Fair Employment &

Housing Com. (1987) 43 Cal.3d 1379, 1392.)

 "Possession" in this context has been defined by the courts as the immediate control of an

object; the thing possessed must be under the dominion of the possessor. (People v. Bigelow (1951) 104

Cal.App.2d 380, 385.) Possession may be in the hand, clothes, purse, bag, or other container. (People v. Sills

156 Cal.App.2d 618, 622.) Having the object for even a limited time and purpose constitutes possession.

(People v. Neese (1969) 272 Cal.App.3d 235, 245.) However, brief possession solely for the purpose of

disposing of the object is not unlawful, as in the case where a person removes illegal drugs from the pocket

of an unconscious friend and immediately throws them away. (People v. Mijares (1971) 6 Cal.3d 415; see

also People v. Cole (1988) 202 Cal.App.3d 1439.) We believe that "disposing" of an object in this context

includes transferring it to law enforcement officers or other proper authorities.

 Accordingly, if a pupil is handed a firearm by another pupil, brings it to a restroom, and

abandons it, such acts constitute a violation of section 48900 or 48915, unless the sole purpose of the brief

possession is to dispose of the firearm. If a pupil places a firearm in the backpack of another pupil, tells the

other pupil of the firearm's location, and the other pupil returns the firearm an hour later wrapped in a coat,

both pupils have sufficient "possession" to constitute a violation of section 48900 or 48915; no intention to

dispose of the firearm could be asserted based upon such limited facts. It also constitutes a violation of either

statute if the pupil accepts a firearm from another pupil, hides it under his coat for a short time, and then

returns the firearm. As long as the possession is knowing and voluntary and not for the purpose of disposing

of the firearm, e.g., handing the firearm to school officials, the pupil "possesses" the firearm regardless of the

length of time involved.

 We conclude in answer to the first question that a pupil may be expelled from school for

"possessing" a firearm if the pupil knowingly and voluntarily has direct control over the firearm. The only

exceptions are where the pupil has the permission of school officials to possess the firearm (§§ 48900,

48915) or where the possession is brief and solely for the purpose of disposing of the firearm such as handing

it to school officials.

 2. Abuse of Discretion

 The second question presented concerns the circumstances under which a county board of

education abuses its discretion in reversing the decision of a school board to expel a pupil. We conclude that

the failure to comply with the governing statutory requirements would constitute an abuse of discretion.

 Following expulsion by the governing board of a school district, an appeal to the county

board of education is available to the pupil or the pupil's parent or guardian. (§ 48919.) The basis for the

county board's decision is the record of the hearing before the district governing board. (§ 48921.) The scope

of the county board's review is defined by section 48922:

 "(a) The review by the county board of education of the decision of the

governing board shall be limited to the following questions:

 "(1) Whether the governing board acted without or in excess of its jurisdiction.

 "(2) Whether there was a fair hearing before the governing board.

 "(3) Whether there was a prejudicial abuse of discretion in the hearing.
4 of 5

 "(4) Whether there is relevant and material evidence which, in the exercise of

reasonable diligence, could not have been produced or which was improperly excluded at the

hearing before the governing board.

 "(b) As used in this section, a proceeding without or in excess of jurisdiction

includes, but is not limited to, a situation where an expulsion hearing is not commenced within

the time periods prescribed by this article, a situation where an expulsion order is not based upon

the acts enumerated in Section 48900, or a situation involving acts not related to school activity

or attendance.

 "(c) For purposes of this section, an abuse of discretion is established in any of

the following situations:

 "(1) If school officials have not met the procedural requirements of this article.

 "(2) If the decision to expel a pupil is not supported by the findings prescribed

by Section 48915.

 "(3) If the findings are not supported by the evidence.

 A county board of education may not reverse the decision of a governing board

to expel a pupil based upon a finding of an abuse of discretion unless the county board of

education also determines that the abuse of discretion was prejudicial."

A county board's decision is also circumscribed by the terms of section 48923:

 "The decision of the county board shall be limited as follows:

 "(a) Where the county board finds that relevant and material evidence exists

which, in the exercise of reasonable diligence, could not have been produced or which was

improperly excluded at the hearing before the governing board, it may do either of the following:

 "(1) Remand the matter to the governing board for reconsideration and may in

addition order the pupil reinstated pending such reconsideration.

 "(2) Grant a hearing de novo upon reasonable notice thereof to the pupil and to

the governing board. The hearing shall be conducted in conformance with the rules and

regulations adopted by the county board under Section 48919.

 "(b) In all other cases, the county board shall enter an order either affirming or

reversing the decision of the governing board. In any case in which the county board enters a

decision reversing the local board, the county board may direct the local board to expunge the

record of the pupil and the records of the district of any references to the expulsion action and

such expulsion shall be deemed not to have occurred."

These statutes define the scope of the county board's discretion. If a county board should act in a manner not

authorized by the statutes, such failure would constitute an abuse of discretion. (See Code Civ. Proc., §

1094.5, subd. (b); Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 463; City of Poway v. City

of San Diego (1984) 155 Cal.App.3d 1037, 1041 ["the question of abuse of discretion, which is established if

the agency has not proceeded as required by law . . ."].)

 Accordingly, we conclude in answer to the second question that a county board of education

abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it
5 of 5

abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it

does not comply with the statutory requirements applicable to such administrative review.

 3. Judicial Review

 The final question presented is whether the governing board of a school district may seek

judicial review of the decision of a county board of education reversing the school board's decision to expel a

pupil. We conclude that it may.

 Section 48924 provides:

 "The decision of the county board of education shall be final and binding upon

the pupil and upon the governing board of the school district. The pupil and the governing board

shall be notified of the final order of the county board, in writing, either by personal service or

by certified mail. The order shall become final when rendered."

Do the words "final" and "binding" contained in section 48924 preclude a school board from seeking judicial

review of the county board's order?

 In Fremont Union High Sch. Dist. v. Santa Clara County Bd. of Education (1991) 235

Cal.App.3d 1182, the governing board of a school district sought judicial review of the decision of a county

board of education reversing the school board's decision to expel a pupil. It was unquestioned that the school

board could seek judicial review, and indeed the trial court granted the board's petition for a writ of mandate

ordering the county board to set aside its decision; on appeal, the judgment in favor of the school board was

affirmed.

 While there is no explicit statutory directive for judicial review of a county board's decision

concerning expulsion, it is the general rule that the decisions of administrative bodies rendering quasi-judicial

decisions are reviewable under the administrative mandate provisions of Code of Civil Procedure section

1094.5. (See Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, 102.) The language of

section 48923, that the decision of the county board is "final and binding upon the pupil and upon the

governing board of the school district," in no way precludes either the school board or the pupil from seeking

judicial review. Indeed, the statement that the decision is "final and binding" establishes one of the

requirements for judicial review, since only final administrative decisions may be reviewed by a court. (See,

e.g., State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 245.)

 We thus conclude in answer to the third question that the governing board of a school

district may seek judicial review of a decision of the county board of education reversing the district board's

decision to expel a pupil.

* * * * *

Footnote No. 1

All references hereafter to the Education Code are by section number only.