M.N. filed a petition for writ of mandate challenging the expulsion decision. On December 7, 2015, the superior court concluded there was substantial evidence to support the administrative finding that M.N. had committed sexual battery under which the District was required by statute to expel the student fоr one year. The court nonetheless granted a peremptory
M.N.'s primary contention on appeal is that the superior court erred in finding there was substantial evidence to support the District's finding that M.N. had committed misdemeanor sexual battery, a finding that carried with it mandatory expulsion. He asserts that the District's sexual battery finding was unsupported by any competent evidence of the element of specific intent-i.e., that M.N.'s unwanted touching of an intimate part of Victim was "for the specific purpose of sexual arousal, sexual gratification, or sexual abuse" ( Pen. Code, § 243.4, subd. (e)(1) ). He contends that proof of such specific intent was based entirely upon hearsay.
We conclude that there was substantial evidence-including competent, admissible, nonhearsay evidence-to support the District's finding that M.N. committed a sexual battery. And, as discussed below, we reject M.N.'s remaining claims of error that (1) the District's decision cannot stand because it failed to make factual findings, and (2) the superior court's decision upholding the District's sexual battery finding was allegedly based on the court's conclusion that M.N.'s awareness of the harmfulness of his actions satisfied the specific intent element of that offense. Accordingly, we will affirm the judgment.
I. PROCEDURAL BACKGROUND
A. Administrative Proceedings
On or about March 5, 2015,
In her March 6 discipline incident report, Principal Griffin summarized that she was informed before school commenced on March 5 that a female student had been tripped by boys on the bus on March 4,
On March 9, M.N.'s parents were provided with a notice of an administrative hearing. On the same date, the District provided M.N.'s parents with, inter alia, the documents to be presented at the expulsion hearing.
The matter then proceeded to hearing on June 11 before a three-member administrative hearing panel (Panel). Both the District and M.N. were represented by counsel. Three witnesses testified in the proceedings: Principal Griffin, M.N., and M.N.'s mother. Additionally, the Panel received certain documents: the expulsion recommendation, discipline incident report, a discipline incident list and incident summary, the notice of suspension, student statements, attendance report, and teacher observation checklists.
B. Court Proceedings
On September 15, M.N. filed a petition in the court below under Code of Civil Procedure section 1094.5 for writ of administrative mandamus (writ petition) against the District and County Board. He alleged that the expulsion decision was invalid because the District and County Board, in finding he had committed sexual battery, had relied exclusively upon hearsay evidence to prove that M.N.'s specific intent was sexual in nature. The finding, M.N. argued, therefore ran afoul of section 48918, subdivision (f)(2), which provides that "no evidence to expel shall be based solely upon hearsay evidence." M.N. submitted a declaration attaching a number of documents from the administrative proceedings, including the transcript of the hearing before the Panel.
The District filed a motion for reconsideration or for clarification of the order pursuant to Code of Civil Procedure section 1008. It argued that remand was unnecessary and inappropriate bеcause of the court's finding that there was substantial evidence supporting the District's conclusion that M.N. had committed sexual battery in violation of section 48900, subdivision (n). The District contended that such a violation carries with it mandatory expulsion under section 48915, subdivisions (c) and (d). Therefore (it argued), the District's secondary findings that M.N.'s presence "cause[d] a continuing danger to the public safety of the pupil and others"-specified in section 48915, subdivision (e)(2) for offenses (such as sexual harassment) for which the punishment of expulsion is discretionary-were unnecessary to the outcome of the case.
After extensive briefing and argument, on February 10, 2016, the court denied the motion for reconsideration, but it modified and clarified its prior order. It held that "the explained grounds for its original order were incomplete, if not erroneous" in that the court had failed to acknowledge that expulsion for a violation of section 48900, subdivision (n) is mandatory. But the court recited that under section 48917, subdivision (a), the governing board has the discretion to suspend the enforcement of its expulsion order for not more than one calendar year, and there was nothing in the reсord suggesting that the Board considered suspending the expulsion. The court therefore modified and clarified the original order on the writ petition to provide that the Board on remand must consider whether there was evidence
II. DISCUSSION
A. Administrative Mandamus & Standard of Review
Review of an administrative decision by mandamus is appropriate where the hearing in the underlying administrative proceeding was mandatory, evidence was required to be taken in the proceeding, and there was discretion vested in the body determining the matter in deciding contested factual issues. ( Code Civ. Proc., § 1094.5, subd. (a).) A court reviewing an agency's decision under Code of Civil Procedure section 1094.5 is guided by the following: "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." ( Code Civ. Proc., § 1094.5, subd. (b).)
M.N. did not assert below that the independent judgment standard applied. Nor does he make that claim on appeal. The District, however, on appeal asserts that the superior court, based upon a finding that a fundamental vested right was substantially affected, exercised independent judgment to review the administrative decision. But the record does not support this contention. Rather, the court stated that in reaching its decision, it "consider[ed] whether there is substantial evidence in light of the whole record to support the [District's] findings." The substantial evidence standard is the appropriate standard of review here. (See Helena F. v. West Contra Costa Unified School Dist. (1996)
Under this standard, the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision. ( Committee to Save Hollywoodland Specific Plan v. City of Los Angeles (2008)
Review by the appellate court of such matters is governed by the same substantial evidence standard, irrespective of whether the controversy involves a fundamental vested right. ( Fukuda , supra ,
B. Public School Disciplinary Proceedings
The rights of students and staff to a safe school environment is embedded in our state's Constitution: "[T]he right to public safety extends to public and private primary, elementary, junior high, and senior high school, and community college, California State University, University of California, and private college and university campuses, where students and staff have the right to be safe and secure in their persons." ( Cal. Const., art. I, § 28, subd. (a)(7); see also In re William G. (1985)
We provide an overview of the statutory framework governing student disciplinary proceedings in public schools, relying upon a decision of the Fourth District, Division One (with updates for statutory revisions). "The Legislature has developed a comprehensive statutory scheme governing the suspension and expulsion of
"Another statutory provision, section 48918, sets forth mandatory procedures that a school district must follow before the district may expel a student who has committed one of these identified expulsion offenses. ... Every student is entitled to a hearing to 'be held within 30 schooldays after the date the principal or superintendent of schools determines that the pupil has committed any of the acts' permitting expulsion. [ (§ 48918, subd. (a)(1).) ] At the hearing, the school district must permit the student and parent to appear, be represented by legal counsel or a nonattorney adviser, obtain copies of all documents to be presented, [confront and question any witnesses presented at the hearing,] and present oral and documentary evidence. (§ 48918, subd. (b)(5).)" ( T.H. , supra , 122 Cal.App.4th at pp. 1276-1277,
Although the governing school board is charged with conducting expulsion hearings (§ 48918, subd. (c)(1) ), it may delegate this function to a panel of three or more certificated, impartial persons. (§ 48918, subd. (d).) The panel must determine within three school days after the hearing whether to recommend the expulsion of the pupil to the governing board. (§ 48918, subd. (e).)
Irrespective of whether the hearing is conducted by the governing board, a hearing officer, or an administrative panel, the expulsion of a student may
"[T]he Legislature [has also] specified the circumstances for triggering an expulsion hearing and the findings that must be made at these hearings. These circumstances-grouped in three primary categories-are set forth in section 48915." ( T.H. , supra ,
C. Sufficiency of the Evidence Supporting Administrative Decision
1. Introduction
M.N. contends that the District's decision that he committed sexual battery was without support because there was no competent evidence to support the specific intent element of the crime, i.e., the act was committed "for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." ( Pen. Code, § 243.4, subd. (e)(1).) He acknowledges that he admitted at the administrative hearing the other elements of the offense-i.e., that he touched an intimate part of another person against her will ( Pen. Code § 243.4, subd. (e)(1) ). But, M.N. contends, he specifically denied in his testimony at the hearing that he acted with the requisite sрecific intent. He asserts that "the only evidence that [the District] presented of M.N.'s purpose in touching the young woman was written hearsay," and this was wholly insufficient to support a finding that he had committed a sexual battery warranting expulsion.
The District responds that M.N. has effectively argued that the District was required to establish specific intent through direct evidence of the actor's
The Education Code, as M.N. acknowledges, does not require the District to base its decision to expel a student strictly upon rules of evidence governing a trial. "Technical rules of evidence shall not apply to the hearing." (§ 48918, subd. (h)(1).) The statute goes on to provide: "[B]ut relevant evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs." (Ibid. ; cf. Gov. Code, § 11513, subd. (c) [hearings under Administrative Procedures Act "need not be conducted according to technical rules relating to evidence and witnesses.... Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions"].) Further, under subdivision (f)(2) of section 48918, subject to certain exceptions
M.N., as noted, argues that the only evidence supporting the District's position that he acted with the specific intent "of sexual arousal, sexual gratification, or sexual abuse" ( Pen. Code, § 243.4, subd. (e)(1) ) was hearsay that is traditionally inadmissible in court proceedings. And M.N.'s key argument presented below was that the statutory provision that "no evidence to expel shall be based solely upon hearsay evidence" (§ 48918, subd. (f)(2) ) "requires that non-hearsay [evidence] support each element of the offense." (Footnote omitted.)
As we discuss below, there was substantial evidence supporting the Board's decision that M.N. should be expelled for sexual battery. This evidence included both nonhearsay evidence and hearsay evidence showing that M.N. acted "for the specific purpose of ... sexual abuse" of the victim. ( Pen. Code, § 243.4, subd. (e)(1).) We will therefore reject M.N.'s sufficiency-of-the-evidence challenge, founded upon the position that the only evidence of specific intent supporting the District's position was hearsay that would traditionally be inadmissible in court proceedings. Moreover, because
2. Sexual Battery
Before reviewing the evidence presented to the Board, we describe the elements of the offense at issue in this appeal that was one of the grounds for the expulsion order, namely, misdemeanor sexual battery. This review will focus upon the specific intent element contested by M.N.
Misdemeanor sexual battery is defined as follows: "(1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both
As argued by the parties both below and on appeal, the specific intent element under Penal Code section 243.4, subdivision (e)(1) at issue here is "for the specific purpose of ... sexual abuse." The court in In re Shannon T. (2006)
The principle enunciated by the court in Shannon T. that the actor's purpose may be inferred from the act itself and the surrounding circumstances is based upon the well-recognized proposition that "as to the specific intent prong ... [,] '[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.' [Citation.] 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' [Citation.]" ( People v. Rios (2013)
a. Griffin Testimony
On March 2, Susan Becerra began driving a new bus route-one identified by witnesses as "bus route number 8." Becerra had been warned that there was a group of students from the Diana Avenue stop who, because of their chronic misbehavior, had been instructed by the previous driver to sit in the front of the bus. On two successive days, she observed a girl, Victim, trip as she and other girls got off the bus. Thereafter, on March 5, Becerra talked to the girls as they exited the bus. After identifying Victim as the girl who had been tripped, she told Becerra that she had tripped because multiple boys, including M.N., had been touching her inappropriately.
Thereafter and immediately before class started that day at the School, Becerra approached Principal Griffin and informed her that a female studеnt accompanying her, Victim, had been subjected to inappropriate treatment on the bus. Griffin then took Victim to her office and contacted the Morgan Hill Police Department. From Griffin's observation, Victim was very scared; she was "shaking, sad, and withdrawn." Victim was concerned about what would happen to her at school. Griffin testified "there were some comments at certain points that were made to her by these boys that it was not in her best interests to be telling on them." Victim said she was afraid of the boys.
Victim told Principal Griffin that over the course of a few months, three boys, one being M.N., had touched her inappropriately while she was riding the bus. They intentionally tripped her so that they could touch her while she was on the bus floor. The boys, on some occasions when they touched her, made moaning noises. Victim said that she had asked the boys, including M.N., repeatedly to stop, saying, " 'It hurts me,' " but they would not stop. Victim also said there were times after she exited the bus that they boys would make gestures and comments about her breasts, including comments about how "it felt so good" and they intended to touch her again. Victim said that she asked her female friends to sit next to her on the bus or walk with her to create a barrier between her and the boys.
After Principal Griffin spoke briefly with Victim and notified the police, she asked Victim to write a statement. The statement by Victim read in part: "Whenever I get on the bus, I always get grabbed by three boys [name redacted], [M.N.], and sometimes [name redacted]. [T]hey usually grab me all the time and I tell them not to and the[y're] always grabbing me in the boobs, or the butt and onetime [sic ] one of them grabbed me or touched my private part. I always tell them to stop but they never do and sometimes when they grab me I fall or trip and I always end up [scraping] my knee[;] it hurts
Principal Griffin was also present on March 5 when the police interviewed four witnesses and when each wrote statements that day. Witness 1
Witness 2 stated he had seen two boys, including M.N., grabbing Victim's buttocks and breasts, and that they did so once or twice a week even though Victim told them to stop. Witness 2 said the boys laughed when Victim walked off the bus. Witness 2 also stated that Victim did not want to get off the bus and that she was afraid of the boys. He said a third boy had grabbed Victim's buttocks on one occasion, on March 4.
Witness 3 stated that for a few weeks, she had witnessed three boys, including M.N., grabbing Victim's buttocks and breasts, and laughing after doing so. Witness 3 said the boys would comment on Victim having "big boobs and a big butt" and Witness 3 said they would "squeeze [Victim's buttocks] and ... pok[e] it." Witness 3 also stated that when Victim fell down, the boys touched her again. Witness 3 said she overheard the boys planning what they were going to do when Victim got off the bus.
Witness 4 stated that since November 2014, she had witnessed students tripping Victim and grabbing her buttocks and breasts when she got off the bus. Witness 4 said she would regularly overhear the students planning to grab Victim after confirming that she was on the bus. Witness 4 noted further that the students told Victim that "she has big boobs and a big butt," made
Principal Griffin was also present when the police interviewed the three accused boys, including M.N., on March 5. One of the boys, Boy 1, admitted having grabbed Victim's buttocks and breasts, as well as her crotch. He also admitted laughing, having tripped and harassed Victim when she got off the bus, and having made hand gestures concerning her breasts. Boy 1 also said that M.N. had grabbed Victim's buttocks, and that M.N. had participated in conversations when Victim got on and off the bus.
Boy 2 admitted to the police that he had tripped Victim and touched her buttocks one time. He said he had participated with M.N. in conversations about Victim's breasts and they had laughed and made gestures when Victim left the bus. Boy 2 also said that M.N. had grabbed Victim's buttocks.
Principal Griffin testified that when the police questioned M.N., he was not initially forthcoming. She testified "[i]t took a significant
Principal Griffin did not personally view videotape footage from the bus obtained by the police. But Griffin was advised by School Resource Officer Brandon, who also authored the police incident report-and Griffin had heard testimony at other hearings-that the videotape footage confirmed that M.N. was a participant with other boys in laughing and joking, in tripping Victim, and in harassing her from bus windows.
b. M.N. Testimony
M.N. testified at the hearing that he first saw another boy on the bus touching Victim's breasts approximately two months before March 5. He observed a second incident involving another boy about one week later. There continued to be incidents in which boys touched Victim inappropriately that occurred sometimes twice a week or every other week. M.N. knew what they were doing was wrong, but he did not report what was happening to anyone. He was uncertain whether Victim ever told any of the boys to stop.
Approximately one month before March 5, at the urging of other boys, M.N. touched Victim's buttocks. "just grabbed her and slapped her ... basically lightly touched her." M.N. estimated that he touched Victim on no more than 10 occasions. He testified that he admitted to the police that he had touched Victim's buttocks and one time on the breasts. (He testified he touched Victim on the breasts because another boy grabbed his hand and placed it on her.) He testified that he told the police he had touched Victim "because these boys on the bus were bullying [him] and pressuring [him] to do it."
M.N. testified that he knew what he was doing was wrong. M.N. denied that he laughed after he touched Victim because
M.N. testified that he did not touch Victim because he wanted to be sexually aroused. He said that he had had no sexual motive at all. The first
M.N. testified at the hearing that he has arthritis in his knee, and that for his whole life, he has been teased and called names by his peers. The students who tease him include those who ride the bus with him to School. M.N.'s mother also testified that his medical condition causes him to limp, and that he has had a harder time particularly in the past school year (seventh grade) with students teasing and bullying him. Neither M.N.'s mother nor father ever reported any of this bullying to the School. Principal Griffin confirmed in her testimony that she had never received a report from M.N., his family, or othеr students that M.N. had been the subject of bullying.
4. Substantial Evidence Supported District's Decision
As noted, M.N.'s challenge is limited to the finding that he committed a sexual battery within the meaning of Penal Code section 243.4, subdivision (e)(1) because he committed his admitted acts involving Victim "for the specific purpose of ... sexual abuse." Our focus is therefore whether, viewing the entire record, there was substantial evidence before the District that M.N. touched Victim inappropriately "for the purpose of insulting, humiliating, or intimidating [her], even if the touching [did] not result in actual physical injury." ( Shannon T. , supra ,
There was a wealth of evidence-disregarding for the moment whether it was nonhearsay or hearsay-that M.N. acted "for the specific purpose of sexual abuse." ( Pen. Code § 243.4, subd. (e)(1).) Focusing first on nonhearsay evidence, we disagree with M.N. that his testimony at the hearing must be viewed exclusively as negating a finding of specific intent. To be sure, M.N. testified that he did not touch Victim for the purpose of sexual arousal or for any other sexual motive. Rather, he said he did so because he was pressured by other boys' threats of ridicule and physical reprisal. While the District, as trier of fact, may have believed M.N., it is equally possible that it did not. M.N.'s testimony concerning the boys' alleged threats was
There was additional nonhearsay evidence at the hearing-chiefly from M.N.'s own testimony-supporting the inferred finding that he acted "for the specific purpose of ... sexual abuse." ( Pen. Code, § 243.4, subd. (e)(1).) First, M.N. admitted that he touched Victim on the buttocks, and that he did so as many as 10 times. Second, he admitted he knew what he was doing was wrong and was hurtful to Victim. It may be inferred from the circumstances that M.N., by touching Victim while others on the bus witnessed it, knew that his actions would be humiliating and insulting to Victim. Third, prior to M.N. inappropriately touching Victim, he had witnessed multiple acts of sexual battery upon Victim by other boys on the bus. He knew that their actions were wrong, but he did nothing to stop them and did not report the actions to anyone. Fourth, M.N. admitted laughing during the incidents in which either he or other boys inappropriately touched Victim. Although he denied that his laughter was related to the inappropriate touching, he could not identify what had caused him to laugh. Fifth, although M.N. testified that he never heard Victim tell the other boys or him to stop touching her, the testimony wаs equivocal. He testified that "[m]aybe" Victim told other boys to stop, and "it was something going through [his] head" that Victim may have said something like " 'Don't touch me.' "
And perhaps most significantly, Principal Griffin testified that M.N., in her presence, admitted to the police on March 5 that in addition to touching Victim's buttocks and breasts, he had directed sexual comments toward her.
M.N.'s purpose was properly "inferred from the [repeated] act[s them]sel[ves] together with [their] surrounding circumstances." ( Shannon T. , supra ,
M.N. relies on John A. v. San Bernardino City Unified School District (1982)
The Supreme Court considered whether the expulsion was improper under relevant provisions of the Education Code, specifically, what are currently subdivision (b)(5) of section 48918 (affording the student the right "to confront and question all witnesses who testify at the hearing"), and subdivision (h)(1) of the same statute ("[t]echnical rules of evidence shall not apply at the hearing, but evidence may be admitted and given probative effect only if it is the kind of evidence upon which reasonable persons are accustomed
The circumstances here are distinguishable from those addressed in John A. In this case, unlike in John A. , the evidence was not "in sharp dispute." ( John A. , supra ,
In reviewing a sufficiency-of-the-evidence claim, we presume that the administrative decision is correct. ( Patterson Flying Service , supra ,
D. Other Arguments Presented by M.N.
M.N. makes two additional arguments in support of his claim of error. He argues
We observe that M.N. did not raise below the argument that the District failed to make required factual findings. He did not assert it in his writ petition, the notice of motion, or in the two memoranda of points and
" 'An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.' [Citation.]" ( Doers v. Golden Gate Bridge etc. Dist. (1979)
As noted, M.N. failed to assert below that the District's decision failed to meet statutory requirements for findings of fact. He has therefore forfeited the challenge on appeal. ( Doers , supra , 23 Cal.3d at pp. 184-185, fn. 1,
M.N.'s argument that the trial court erred in allegedly basing its decision
III. DISPOSITION
The judgment entered on the order of December 7, 2015, concerning the petition for writ of mandate, as modified and clarified by the order of February 10, 2016, is affirmed.
WE CONCUR:
ELIA, ACTING P.J.
MIHARA, J.
Notes
We use the term "Victim" to identify the girl as a matter of convenience and because her identity has not been, and should not be revealed in the record. In doing so, we do not prejudge the merits of the administrative findings that are the subject of this appeal.
All dates hereafter are 2015 unless otherwise specified.
All further statutory references are to the Education Code unless otherwise stated.
Although it was not formally introduced at the commencement of the hearing, M.N.'s counsel referred extensively to a 16-page "Incident Report" (police report) prepared by Officer Jeff Brandon of the Morgan Hill Police Department. M.N.'s counsel provided a copy of the police report to the Panel at the hearing.
Although the County Board was a respondent below, it did not elect to participate in this appeal by submitting a respondent's brief.
In its appellate brief, the District explained that "[t]he parties agreed to stay and not proceed with [the superior court's directed] limited remand unless or until final resolution of this appeal." M.N. does not challenge this assertion in his reply brief, and we therefore accept the District's representation of the procedural status of the case.
"Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to еxercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c).)
The current version of section 48900 reads 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 any of subdivisions (a) to (r), inclusive: [¶] ... [¶] (n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code. [¶] ... [¶] (s) 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 superintendent of the sсhool district or principal or occurring within any other school district. ..."
The District found that M.N. violated section 48900 because he (1) committed or attempted to commit a sexual assault (as defined under several specified sections of the Penal Code), or committed a sexual battery under Penal Code 243.4, and (2) committed sexual harassment as defined under section 212.5. Unlike sexual battery, which carries with it a mandatory punishment of expulsion (see § 48915, subds. (c), (d) ), sexual harassment is one for which a student may be subject to a discretionary punishment of expulsion (see §§ 48900.2, 48915, subd. (e) ). M.N. challenged the entire decision in his writ petition, including the finding that he had committed sexual harassment. But the superior court in its order did not address the District's sexual harassment finding, and M.N. does not include that District finding in his challenge on appeal. Accordingly, the District's sexual battery finding is the only one with which we are concerned here.
The witnesses are identified as numbers one through four, based upon the order in which they were mentioned in the testimony of Principal Griffin.
Griffin acknowledged on cross-examination by M.N.'s counsel that it was recited in the police report describing the interview with M.N. that he "admitted hе had touched [Victim's] buttocks approximately 5 times over the last couple of weeks. He said he did it because the other boys were pressuring him to do it and said they would call him a 'chicken or pussy' if he didn't." But Griffin stood by her testimony that M.N. did not tell the police he had been bullied or teased into touching Victim.
M.N.'s response to a panel member to his question on this issue was: "I don't know. Maybe. I don't know if she-not that I know of-."
We note further that although there is a reference in the police report to M.N. saying that other boys told him they would call him names if he did not touch Victim, there is no indication in the report that he told the police that other boys had threatened to physically harm him.
"Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." (Evid. Code, § 1220.)
"If the hearing officer or administrative panel recommends expulsion, findings of fact in support of the recommendation shall be prepared and submitted to the gоverning board of the school district. All findings of fact and recommendations shall be based solely on the evidence adduced at the hearing...." (§ 48918, subd. (f)(1).)
The court's order reads in part: "Here, M.N. had observed a long history of the abuse the victim had suffered at the hands of others-the taunting she had experienced and the gestures and words of others. M.N. states that before he became involved, the assaults would occur as often as twice a week for almost two months. He knew that his actions were witnessed by others so that the victim would be humiliated or insulted. It makes no difference that the actions which humiliated the victim were primarily motivated by M.N.'s avoidance of his own potential embarrassment by failing to participate in the activity. He admits that after his touching, he would join the other boys in laughing at the event. While M.N. insists that the victim appeared 'not to care' what was happening to her, he also admits that the only time she ever spoke to him was when she confided in him that she did not like the Diana Avenue boys. Perhaps most importantly, M.N. knew what he and the other boys were doing was wrong. In conclusion, there is substantial non-hearsay evidence of the sexual abuse element found in misdemeanor sexual battery."