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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 Miranda 

advisements were not received; 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 
2.

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 
3.

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 administrative record supported 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

School Dist. v. Commission on Professional 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. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647; Church of

the Merciful Saviour v. Volunteers 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. (Griffith Co. v. San Diego College for 

Women (1955) 45 Cal.2d 501, 508.)
4.

Education Code section 489001provides, 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.) 

 

1 All statutory references are to the Education Code unless otherwise stated.
5.

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. (Fremont Union High School Dist. v. Santa 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 
6.

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.

The Admissibility of J.T.'s Statements to 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. (Gordon J. v. Santa Ana Unified School Dist. (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 
7.

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; Jazayeri v. Mao (2009) 174 Cal.App.4th 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"].) 

Admissibility of the Victim's Declaration

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 risk of psychological or physical harm. Upon 

this determination, the testimony of the witness may be presented at the hearing in the form 

of sworn declarations . . . ." (Italics added.) 
8.

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.

Inadequate Notice

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. (Eliceche v. Federal Land Bank Assn. (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. 
9.

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.
10.

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.