(Super. Ct. No. 37-2010-00090594- CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge.
The opinion of the court was delivered by: O'rourke, Acting P. J.
CERTIFIED FOR PUBLICATION
Reversed and remanded with directions.
After respondent San Diego Unified School District (District) dismissed appellant Thad Jesperson from employment on grounds he inappropriately touched a student, the three-member Commission on Professional Competence (the Commission) determined District had not proven Jesperson's evident unfitness to teach, immoral conduct, or persistent violation of District regulations. District filed a petition for a writ of mandate with the superior court, which granted the petition and vacated the Commission's decision.
Jesperson appeals from the ensuing judgment in District's favor. He contends substantial evidence does not support the superior court's finding that he touched his accuser "in the manner to which she testified." He further contends the court erred because it did not afford a strong presumption of correctness to the Commission's decision and its credibility determinations, and it did not make findings that applied the requisite factors relevant to determine his asserted unfitness to teach.
We reverse the judgment and remand the matter to the trial court with directions that it enter a new judgment denying the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Jesperson's Employment with District
Jesperson began teaching with District in 1998, at which time he was given a one-year contract as a "prep time" teacher at Toler Elementary School (Toler). District rehired him as a second grade teacher for the 1999-2000 school year and he continued that assignment for 2000-2001. Jesperson was assigned to a third grade class at Toler for the 2002-2003 school year. During that year, a special education aide, Connie Murphy, worked in his class one-on-one with a student in Jesperson's classroom. Jesperson was well liked by the students, staff, parents, and community.
Jesperson's classroom for the 2002-2003 school year was an above-ground bungalow with a ramp leading to the entry door, desks, a rug for seated activities, and a kidney-shaped table against the wall in the far right-hand corner opposite the entry door. The bungalow had banks of louvered windows with blinds on the east and west sides, which started about three feet from the floor area up to the ceiling. Jesperson always kept the blinds pulled to the top because the windows were the best source of light. He conducted math instruction for Gifted and Talented Education (GATE) students every day at 11:15 a.m. for an hour and 20 minutes. For that instruction, students from other classrooms came to Jesperson's class where he would give direct instruction and then break the students into group work, give them a worksheet, and afterwards have the students line up at his kidney-shaped table standing while he quickly assessed their work. Jesperson cannot hear in his left ear and he is right-handed. However, he recalled that students getting their math assessment lined up both on his left and right sides. Murphy was regularly present during that time because her student was part of that math block instruction.
Jesperson provided one-on-one instruction to students in a YMCA-sponsored program that permitted students in kindergarten through fifth grade to come into the school auditorium before school and after school until as late as 6:00 o'clock in the evening, allowing parents to work. That program occasionally took place in his classroom. Jesperson routinely had a group of students in his room ranging from 10 to 20 students and there were typically no other adults in his classroom, but people were allowed to come in whenever they wanted.
In January 2003, Nellie Goodwin, a guidance aide, reported to Toler's principal Jane Davis that a female student's mother complained to her that Jesperson had touched her daughter. Davis called District police and asked for someone to investigate the matter. The next day, Davis was contacted by a mother of a different student who said Jesperson had touched her child on the leg, and Davis advised her police were investigating. Days later, Davis excused Jesperson from school after being directed to do so by a staffing administrator who had been contacted by the San Diego Police Department.
Davis mailed letters to Toler parents on January 24, 2003, and to the parents of Jesperson's students on February 3, 2003. The first letter generally notified parents that the school had removed an employee due to allegations of inappropriate behavior, and that San Diego police were conducting an investigation. The second letter advised the parents of Jesperson's students that Jesperson had been temporarily assigned to another job pending the outcome of an investigation of allegations of inappropriate behavior, and the school had assigned a long-term substitute for the class.
In April 2003, Jesperson was arrested. Thereafter, Davis sent a letter notifying parents that following an investigation, Jesperson had been arrested on several counts of inappropriate behavior with a minor, and that the police department had already notified the parents of the involved students. The letter advised the parents to listen to their children without interrogating them, and to notice any changes in their behavior or words.
Background of Criminal Proceedings
In 2004, Jesperson underwent three criminal trials. His first trial commenced in March, after which the jury returned a guilty verdict on one count of lewd conduct with a child involving Emily A., and deadlocked on the remaining 12 counts. The second trial commenced in May on the remaining 12 counts of lewd conduct with a child. The jury returned a guilty verdict on one count involving Jaicee S., but the court granted Jesperson a new trial on that count. The jury returned not guilty verdicts as to counts involving three other girls, and the court declared a mistrial as to another count involving Jaicee, as well as on counts involving Michelle A. and Kelcey H. A third trial commenced in December 2004 on the remaining seven counts of lewd conduct with a child involving Jaicee, Michelle, and Kelcey. The jury convicted Jesperson on all seven counts, and the court sentenced him to seven concurrent 15-year-to-life prison terms plus a concurrent six-year term for the conviction in his first trial.
In September 2007, Jesperson's convictions were reversed on appeal on grounds of a substantial likelihood of juror bias in the first and third trials, and ineffective assistance of counsel for failure to object to inadmissible or prejudicial evidence in the third trial. Thereafter, the San Diego County District Attorney declined to retry Jesperson.*fn1
District's Notice of Termination and Jesperson's Request for Administrative Hearing
After his convictions were overturned, District was required to give Jesperson an opportunity for reemployment. In November 2008, District notified Jesperson in writing of its intent to terminate his employment on grounds of evident unfitness for service (Ed. Code, § 44932, subd. (a)(5)); immoral conduct (Ed. Code, § 44932, subd. (a)(1)), and his refusal to obey reasonable regulations prescribed by District's governing board requiring him to maintain a professional relationship with students (Ed. Code, § 44932, subd. (a)(7)). Specifically, District alleged Jesperson had engaged in certain described lewd and lascivious acts with minor students Emily A., Michelle A., Jaicee S., and Kelcey H. Jesperson requested a hearing with the Commission, which took place over the course of three days in January 2010.
Evidence Presented at the Administrative Hearing
Among other witnesses, only one of Jesperson's former students, Emily A., testified at the administrative hearing, as did her mother, Emeilia A. Their testimony from the first criminal trial was read into the evidence at the hearing, and the Commission had before it Emily's Children's Hospital interview from May 2003.
Emeilia's Administrative Hearing Testimony
Emeilia testified during the administrative hearing that in November 2002, she was playfully tickling Emily in Emily's bedroom and had "touched her leg" when Emily said, " '[T]hat's what my mathematics teacher does to me.' " Emeilia stated she took no action that night, but cried outside of Emily's presence. The next day, Emeilia went to Toler and told Nellie Goodwin, who spoke Spanish, what Emily had said. Goodwin responded that Jesperson was a charlatan and she did not know why he was working at the school. Goodwin told Emeilia she would take care of it. Emeilia testified that she wanted to speak with the school principal that day, but Goodwin told her the principal was at a meeting.
That day or another day, Emeilia decided she wanted to meet Jesperson, and she found him and greeted him in a patio area. Emeilia approached Jesperson, who was holding Emily's and another girl's hands, and when she introduced herself as Emily's mother, he replied, "Yes, a very pretty girl, a very intelligent girl." Emeilia testified that Jesperson asked her what she was doing at the school, and she told him she came to the school to help from time to time. After speaking with Goodwin, Emeilia did not try to speak with the principal to complain, nor did she go to police. She spoke about the situation with her husband, and then her family left to vacation in Mexico during the month of December.
Emeilia testified that in March or April 2003, she received a telephone call from a police officer who asked her questions about the situation. She was asked for permission to have Emily interviewed at school. She did not speak with anyone else regarding the matter until she was called to testify at Jesperson's criminal trial.
On cross-examination, Emeilia was asked to describe how Emily showed her the touching. She described it as Jesperson passing his hand up Emily's back with his hand flat, and touching the side of Emily's right leg on the upper thigh with his thumb pressed on the front part of her hip.*fn2 Emeilia admitted that Emily continued to get math instruction with Jesperson after telling her about his touching her on the leg, and Emily never said she did not want to work with him anymore. Emeilia explained that the word "charlatan" meant playful, and that when Emily told her Jesperson played with her, she told her mother he did so not just with her, but "[w]ith all of us." Emeilia believed Emily had testified in the criminal trial that Jesperson had touched her between her legs in her private part. She admitted she had retained a lawyer to sue Jesperson, but stated they did not receive any money from the lawsuit. On redirect, Emeilia explained that her case was dismissed as untimely.
Emily's Administrative Hearing Testimony
Emily, who was 14 years old at the time of the administrative hearing, testified that she "somewhat" remembered the events from 2002 and 2003. She admitted that before the hearing, she had read a trial transcript as well as a September 3, 2009 declaration she had signed that was written by District's counsel. She stated that everything in that declaration was accurate.*fn3
Emily testified that in third grade she participated in the GATE program in math, which required her and other students to go to Jesperson's classroom for instruction at certain times of the day. Jesperson would give the students an assignment or teach a lesson, and they would get their work checked by going to Jesperson while he was sitting at his desk. Emily testified, "[W]e would go and get our work checked, and I just like--he would like touch us and stuff." When asked what part of her body Jesperson touched, she said, "Like my legs and my back." She testified Jesperson touched her legs high on her right thigh or low buttocks, and also on her lower back; she did not remember how many times it happened to her, but it happened "more than like a few times." She stated Jesperson put his hand inside her pants and over her underwear in the back, but did not touch her skin directly. According to Emily, Jesperson only touched her in the back, not the front, and he would move his hand around while he was checking the records. When asked the period of time the touching lasted, she stated, "Well, depends, but like a minute maybe." Emily also testified that Jesperson touched her on her lower back, and stated she thought it was under her clothing or shirt. When asked whether it was skin to skin or over her shirt, she said, "I really don't remember."
Emily testified Jesperson would be sitting and she would be standing when the touching occurred. According to Emily, this happened more than once on different days, during regular classroom time with his students and other GATE students present. She admitted no other students told her they saw what Jesperson was doing to her. Also, Emily acknowledged Murphy would be in the room helping her special needs student during the times the touching occurred. When asked whether she had talked to her mother and what Emily had said, Emily testified: "I don't remember exactly, but from what my mom tells me, that we were playing tickle, and she was tickling like my legs and my back, and then I said something like, Oh, that's what my teacher does to me." She stated she did not know whether what had happened was a right thing or wrong thing at the time, but she thought Jesperson was nice and friendly, and she was "pretty sure" her grade in math was good. She never spoke with the principal or school counselor about the touching after it happened. She never spoke with Jesperson about the touching.
After Jesperson left the school, Emily thought she recalled talking to other students about the touching, but did not remember what she said or who she spoke with. She recalled speaking at school with a female detective, San Diego Police Detective Kim Newbold, about a month after he left. Emily testified she also recalled being interviewed on videotape at Children's Hospital, but did not remember anyone else interviewing her after that. When asked whether she was interviewed by the district attorney, Emily testified she thought so, once or twice. She also testified more than once at Jesperson's trials. Emily stated that none of the people who interviewed her told her what to say or planted stories in her head about what had happened. She told the panel that everything she said was the truth and what she remembered.
On cross-examination, Emily admitted that at times she had held Jesperson's hand while at Toler, and that there was never a time when Jesperson wanted to hold her hand or touch her back or leg that caused her to move away or made her feel "weird." She testified she never really said anything to her mother other than what Jesperson did, she did not tell her mother she wanted to avoid him. She testified that she was sometimes scared at night, and would sleep with both a nightlight and the lights on in her room. Emily admitted that she denied being touched the first time an interviewer talked to her.
According to Emily, Jesperson would touch her while he was writing with a pen in one hand and looking at her work. She initially could not remember whether she stood on Jesperson's left or right hand side, but then stated she thought she stood on his left. Emily testified that she thought at the first trial she had said Jesperson had touched her private parts, and that she considered her upper thigh, "butt area" and the area between her "butt" and legs private. She recalled that Jesperson touched her on the thigh and between her legs, but not in front. When asked what sort of touching it was, she said, "It would be a rub." When asked whether Jesperson ever squeezed her butt, Emily responded, "I don't think so." Emily acknowledged that while she was in third grade, she was subjected to "good touching" like a pat. She agreed she was sick of people other than her mother and father asking her about what had happened.
Answering the hearing officer's questions, Emily could not recall whether she was uncomfortable at the time Jesperson was touching her in the classroom. At the time he touched her, she did not have a feeling as to whether it was right or wrong but later, after the court proceedings and when people explained it to her, she began to feel it was wrong. She also testified that she would sleep with the lights on in her bedroom after watching a scary movie.
Emeilia's Testimony from Jesperson's First Criminal Trial
Emeilia testified at Jesperson's first trial that in November 2002, Emily told her "her teacher" would tell her she was very pretty, and that he would touch her leg and back. She told Emily to tell him to stop. Emeilia explained that Emily described Jesperson tickling her on her back, with his right hand on her back under her shirt and moving his outstretched fingers back and forth. Emily told her mother not to worry; that Jesperson was "a very playful person" and he did that with all the kids.
Emeilia testified about her conversation with Goodwin, and the fact she met Jesperson at the school while he was with the whole class and "holding a girl by the hand." According to Emeilia, Goodwin replied that Jesperson was a "joker" and she did not know why he was a teacher. Emeilia stated she had a conversation with Emily about the matter that same month, but could not remember the date.
According to Emeilia, she and Emily next spoke about the subject in May 2003 after Emeilia received a call from the police and from someone telling her about an appointment at Children's Hospital. A school representative told her that Emily had reported being touched, and Emeilia learned how she was touched when they went to the hospital. Emeilia denied telling Emily what to say to detectives. Emily did not receive counseling at that time, but was in counseling at the time of the trial.
Emily's Testimony from Jesperson's First Criminal Trial
Emily testified at Jesperson's first criminal trial that when she was in third grade and taking math from Jesperson, Jesperson touched her in his classroom more than once. She described the touching as on "my private part, my back, my legs, and I'm not sure about my neck." When asked to describe her private part, Emily stated, "Like over my underwear or something like that." According to Emily, Jesperson would stick his hand inside her pants on the back. She let him do that and did not really know whether it was good or bad touching. Emily stated the touching occurred while she was standing and he was sitting at a desk checking her math sheets. Emily testified she thought Jesperson touched her on ...