Opinion
A159363 A159433
06-29-2021
In re Ian H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Ian H., Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. Nos. 201635070-02 & -04
SANCHEZ, J.
In this consolidated delinquency appeal, Ian H. challenges the juvenile court's dispositional orders made after wardship petitions were filed on his behalf pursuant to Welfare and Institutions Code section 602. Specifically, Ian asserts the electronic search condition ordered at disposition is impermissibly overbroad, restitution fines imposed under sections 730.5 and 730.6, subdivision (b) must be stricken, and errors in the dispositional minute order must be corrected. The minor also contends that insufficient evidence supports the jurisdictional finding of misdemeanor battery in this case, given substantial evidence of self-defense. He additionally claims that the juvenile court abused its discretion in declining to dismiss these delinquency petitions in favor of dependency proceedings in accordance with section 241.1. We strike the section 730.6 restitution fine but otherwise affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2019, the Napa County District Attorney filed a petition under section 602, alleging that then-17-year-old Ian H. had committed misdemeanor battery within the meaning of Penal Code sections 242 and 243, subd. (a). The allegations stemmed from a family disturbance on September 18 in which Ian punched his father, E.H. (father), in the face. Several days earlier, on September 12, Ian had been involved in a car accident as a passenger in which the driver ran over a fire hydrant. Ian later admitted using Xanax and being blacked out during this incident. Father accessed Ian's cell phone while the minor was asleep and reported seeing a photograph of the minor with two “Xanax bars” in his mouth and discovering evidence Ian had accessed a website which sold “acid.” Father had previously heard Ian talking to a friend on the phone about an “acid” trip he had taken. Father took away Ian's cell phone and bank card as punishment for using drugs.
While demanding the return of these items so that he could go to work, Ian reportedly threatened to bring his “gang [from] Mare Island” to kill father. R.M. (mother) discovered her debit card and $25.00 missing from her wallet. Father changed the locks to the home out of concern for his family's safety. On September 18, Ian was allowed to enter the house to retrieve some clothing. He and father argued, which led to the minor punching father.
Father requested that Ian be arrested, stating he believed problems would likely continue if Ian returned to the family home. Ian admitted hitting father after father called him names. He additionally reported using a variety of street drugs in the past and using marijuana earlier on the day of the incident. The minor was formally detained on September 20, 2019.
On October 9, 2019, the court referred the matter for a report pursuant to section 241.1. At the contested jurisdictional hearing on October 10, the juvenile court heard testimony from father, mother, a deputy sheriff who responded to the incident, and the minor. The court found the allegations in the petition true and concluded that Ian was a person described by section 602. The next day, the juvenile court released the minor into the protective custody of the child welfare department pending completion of the section 241.1 report.
“A child who has been abused or neglected falls within the juvenile court's protective jurisdiction under section 300 as a ‘dependent' child of the court. In contrast, a juvenile court may take jurisdiction over a minor as a ‘ward' of the court under section 602 when the child engages in criminal behavior.” (In re M.V. (2014) 225 Cal.App.4th 1495, 1505 (M.V.).) “As a general rule, a child who qualifies as both a dependent and a ward of the juvenile court cannot be both.” (Ibid., citing § 241.1.) Under section 241.1, the county probation department and the child welfare services department jointly prepare and present their recommendations to the juvenile court to determine which status is most appropriate for the best interests of the minor and for public safety. (§241.1, subd. (a).)
At the section 241.1 hearing on October 30, 2019, the juvenile court determined that the minor would be better served by remaining under the jurisdiction of the delinquency court rather than being declared a juvenile court dependent. The matter was thus continued to November 6, 2019, for disposition on the section 602 petition. When Ian failed to appear on that date, the court ordered a no bail bench warrant.
On November 8, 2019, police officers responded to a report that a juvenile, later identified as Ian, was selling drugs near an elementary school. When Ian was subsequently apprehended and searched, police discovered a small bag of suspected methamphetamine in his pants pocket, which later tested presumptively positive for the drug. The minor explained he was “ ‘[j]ust trying to make some money' ” and laughed. Earlier that morning, Ian had run away from probation officers who were attempting to contact Ian at his foster home. The minor reported last sleeping at his foster home on November 5. He had not been attending school nor had he been following the rules of his foster home.
An amended supplemental petition was filed on November 12, 2019, alleging that Ian had committed four misdemeanors: petty theft (Pen. Code, § 484, subd. (a), count one), sale or receipt of an access card to defraud (Id., § 484e, subd. (c), count two), resisting a police officer (Id., § 148, subd. (a)(1), count three), and possession of a controlled substance (Health & Saf. Code, § 11377, subd, (a), count four). He was formally detained for a second time and admitted all four allegations. Probation found that “[t]he totality of the circumstances regarding the minor are overwhelmingly concerning.” A joint dispositional hearing covering both petitions was set for November 25, 2019.
Counts one and two related to the incident described above where Ian stole mother's debit card and used it to pay for an $8 Uber ride. On November 25, 2019, at the District Attorney's request, the court withdrew Ian's admissions as to counts one and two and ordered both counts dismissed subject to comment and restitution.
In advance of the scheduled hearing, the probation department submitted a dispositional report recommending that Ian be made a juvenile court ward and placed in a short term residential therapeutic program. When interviewed, Ian stated he was happy in his current foster placement. He reported a history of physical, emotional, and verbal abuse from his father since he was a young child. He did not want to return to the home of his parents. Prior to his arrest, Ian was working in a restaurant. He wanted to start working again, graduate from high school, and possibly join the Coast Guard.
The minor's parents reported that Ian's behavior had declined over the past five months, marked by heavy substance use, emotional dysregulation, “ ‘violent tantrums,' ” vandalism of their home, and suicide attempts. Neither parent wanted the minor to return. Mother could not “bring herself” to visit Ian while he was in custody. Ian had been previously diagnosed with ADHD, depressive disorder, and adjustment disorder with mixed disturbances of emotion and conduct, family disruption, and parent/child problems. He had been in counseling, participated in outpatient and residential treatment programs, prescribed a variety of medications, and was psychiatrically hospitalized twice. Probation expressed concern about Ian's well-being, mental health, and prolific substance abuse and recommended that Ian be placed in short-term residential treatment.
On the date set for disposition, the juvenile court continued the matter so that a mental health assessment for the minor could be obtained from the county. Although Ian completed the mental health assessment, he declined to sign a release of the results to probation. Probation reported that the minor met the requirements for receipt of county mental health services. Probation had also received information from the police that Ian had followed a boy home from school in the days before his arrest, attempting to sell the boy drugs. The reporting party showed the police officer Ian's Snapchat account, which included photos of baggies of suspected methamphetamine, cannabis vape pens, a thick white square believed to be cocaine, and at least five plastic sandwich bags containing suspected Oxycodone. The officer opined, based on training and experience, that Ian was using his social media platform as a means to sell drugs. Probation continued to believe that the minor would be best served in a short-term residential therapeutic program.
At the dispositional hearing on December 11, 2019, Ian was adjudged a ward of the Napa County Juvenile Court pursuant to section 602 and placed in a short-term residential treatment program. Among the conditions of his probation, he was ordered to submit his electronic devices for search in “areas of the electronic devices where evidence likely to reveal criminal activity or probation violations may be found.” The minor was also ordered to pay $50 fines under each of section 730.5 and 730.6, subdivision (b). Timely notices of appeal were filed with respect to both petitions, and on November 4, 2020, we ordered to two cases consolidated.
II. DISCUSSION
A. Substantial Evidence Supports the Battery Finding
We first consider Ian's claim that insufficient evidence supports the misdemeanor battery adjudication because he was acting in self-defense when he punched father. A battery is “any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) There is no dispute that Ian committed battery when he punched father in September 2019. To justify a battery based on self-defense, an individual generally must have an honest and reasonable belief that bodily injury is about to be inflicted on him or her. (People v. Minifie (1996) 13 Cal.4th 1055, 1064 (Minifie).) The right of self-defense is limited to the use of reasonable force. (Id. at pp. 1064-1065; People v. Clark (2011) 201 Cal.App.4th 235, 250.) Generally, if self-defense is raised by the evidence, the prosecution has the burden of establishing beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Lee (2005) 131 Cal.App.4th 1413, 1429.) Thus, the question before us is whether substantial evidence supports the court's conclusion, beyond a reasonable doubt, that Ian did not act in self-defense.
The standards governing substantial evidence are well settled. “When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)
According to father's testimony at the jurisdictional hearing, Ian's behavior was “spiraling out of control” in the months preceding the incident and the minor had been associating with violent drug dealers. Father changed the locks on the family home because he was afraid for the safety of his wife and daughter. Father denied being physical with or threatening Ian before the minor hit him, but he did admit to calling Ian fat. Father also admitted he had been physically aggressive with Ian in the past, including spanking him, shoving him, and grabbing him by the cheeks hard enough to leave red marks. In 2016, he tackled Ian to the ground after a disagreement, choked him to the point Ian said he could not breathe, and left red marks on Ian's neck. Mother and Ian's sister had to pull father off the minor. Father said he had not been physical with Ian since that 2016 incident, after which he went to anger management classes. Father admitted he had been counting the days until Ian turned 18 because he wanted him out of the house. Mother testified that she heard Ian and father arguing and then saw father stagger backwards rubbing his cheek. She did not see father do anything threatening to Ian. Mother confirmed father's prior physical aggression towards Ian but stated he had been “very disciplined” when interacting with the minor since 2016.
Deputy Sheriff Heuschel testified that he was an investigating officer at the September 2019 incident. He had known Ian for a long time, having been his under 10 soccer coach. Ian expressed that he became agitated based on things father said to him, and so he punched father in the face. The minor conveyed he had overreacted and should not have punched father. Ian did not tell the deputy he felt threatened by father or that father attempted to hit him.
Ian testified regarding physical abuse from father dating back to before kindergarten, when father shoved him up against a wall. Father had also hit him in the past. According to Ian, father was verbally abusive “his whole life, ” calling him stupid, saying that child welfare could have him and that they didn't want him. Ian admitted father no longer physically abused him after 2016. During the incident when he punched father, Ian testified that father called him “pork boy” and stated the minor was “gonna be someone's bitch.” Father then “got in his face, ” which was typical, but father was closer this time and he was scared because he did not know what father would do. Ian stated he had been scared his whole life. Ian “jabbed him in the jaw, just get out of my space, I don't know what you're gonna do.”
At the conclusion of the hearing, the juvenile court found Ian “credible and sincere” with respect to his “very disturbing” testimony regarding how he had been treated since before he went to kindergarten. Nevertheless, the court sustained the allegation of misdemeanor battery and rejected the minor's claim of self-defense, reasoning: “I think it's undisputed that Ian used force or violence against his father. [¶] The question is about self-defense.... And it's true that the Court needs to look at the totality of the circumstances and prior acts. But I found that Ian's interview with Deputy Heuschel was compelling for the Court. They have a preexisting relationship. When Deputy Heuschel explained that he knew Ian from coaching under 10 soccer, Ian smiled. And listening to the audio and seeing the video, but in particular listening to the conversation between the two of them, I think Ian was very comfortable speaking with Deputy Heuschel and I think he was honest with him.” The court then recounted portions of the conversation where Ian stated he hit his father because his father called him names. Further, Ian did not say his father intended anything physical but rather “he got into my face and told me things that I told him not to say, that he purposefully did it but that didn't justify me hitting him though.” The court also noted that Ian said his father “got in his face” frequently but testified he had not physically abused him since 2016.
The court's reasoning was thoughtful and its credibility determinations well-supported. Given the totality of the evidence before the court, it was reasonable to conclude that, although father's conduct during the incident was emotionally abusive, Ian did not “have an honest and reasonable belief that bodily injury [was] about to be inflicted on him.” (Minifie, supra, 13 Cal.4th at p. 1064, italics omitted.)We cannot say substantial evidence failed to support the court's determination that Ian did not act in self-defense.
B. Section 241.1 Determination Not Abuse of Discretion
As discussed above, “[w]henever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall... initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court... and the court shall determine which status is appropriate for the minor.” (§ 241.1, subd. (a).)
A juvenile court's determination under section 241.1 is reviewable for abuse of discretion. (In re Aaron J. (2018) 22 Cal.App.5th 1038, 1053 (Aaron J.).) As have our colleagues in Division Four, we read section 241.1, “within the context of the juvenile court law generally, as granting broad discretion to the juvenile court when determining which status will best meet a particular minor's needs.” (M.V., supra, 225 Cal.App.4th at p. 1513.) To show abuse of discretion, an appellant “ ‘must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.' [Citation.] Throughout our analysis, we will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them. [Citation.]” (M.V., at pp. 1506-1507.)
Ian contends that the juvenile court's conclusion that he should continue within the delinquency system rather than become a juvenile court dependent constituted an abuse of discretion. He faults the juvenile court for appearing to focus solely on probation's ability to drug test him while ignoring his mental health issues and history of family trauma. He argues that, since the juvenile court apparently credited his account of prior physical and emotional abuse, its explanation for choosing delinquency over dependency was inadequate. We reject Ian's claim because it misapprehends the juvenile court's reasoning and because Ian asks us to substitute our decision for the considered judgment of the juvenile court.
The section 241.1 report disclosed that the minor had been diagnosed with several mental health issues, struggled academically, and had negative outbursts in a traditional school setting. In an interview with the child welfare worker, Ian disclosed a history of physical and emotional abuse by father, consistent with his testimony at the contested jurisdictional hearing. The minor's parents reported that Ian had three instances of suicidal ideation over the previous five months and had attempted suicide once, using his prescribed medication.
However, the report also acknowledged that the minor was not completing his schoolwork in an unstructured independent studies program. In addition, he had received various therapeutic and behavioral services in the past-“including individual and group based outpatient psychiatric services, cognitive behavioral programs, and residential placement in one wilderness program and two separate boarding schools”-without any lasting change. Further, Ian admitted to daily use of marijuana and stated he used LSD and Xanax “ ‘pretty consistently.' ” He elaborated: “ ‘Since family stuff started getting worse, I was taking four bars of Xanax just to black out. I hate thinking about my family.' ” As for mother and father, they expressed that Ian was “ ‘too dangerous' ” to return to the family home. The report listed services available to Ian, including substance abuse and school resources as well as supervision, cognitive behavioral groups, and residential placement through probation. Both the probation department and the child welfare division recommended that Ian's case be handled in the delinquency system.
At the section 241.1 hearing on October 30, 2019, Ian's delinquency counsel requested that the delinquency matter be dismissed in favor of dependency proceedings, which would address the minor's history of abuse and provide services to the entire family. The deputy district attorney, on the other hand, argued that continued delinquency jurisdiction was appropriate given the scope and severity of Ian's current issues. The probation officer concurred, noting that delinquency gave the minor the best chance of staying in the community because probation could work with the foster parent to provide supervision (such as drug testing) and consequences for Ian's behaviors, while child welfare would likely just escalate the minor to a group home. She felt strongly that probation was “more and better equipped to work with him.” The deputy county counsel representing child welfare acknowledged that the agency did not believe it could provide Ian with the services he needed. For example, she noted that while child welfare had set up schooling for Ian, he had not attended the first week he was enrolled, and the agency had no ability to enforce consequences for this behavior. Finally, while Ian's dependency counsel agreed that Ian had been a victim of child abuse, she also believed services through probation would be better for the minor. In rebuttal, Ian's delinquency counsel argued that Ian did not need to be drug tested to successfully receive substance abuse services.
The juvenile court acknowledged that it was “very concerned” about the previous testimony it had heard in the case, stating: “I think that there have been a lot of issues going on for a long time that have most definitely contributed to Ian being here today.” The court apologized to Ian for what he had experienced but noted that “our goal is to help you be successful and move past that.” Under the circumstances presented, the court determined it was more appropriate for Ian to remain under the supervision of the delinquency court. The court explained: “I'm very concerned about the level of drug use with Ian. He was in a bad car accident. And I think that the level of supervision that he can get with probation and the level of services he can receive are higher, and that is in his best interest so that he can be successful.”
The juvenile court's remarks make clear it was not ignoring Ian's history of trauma. However, given the severity of the minor's substance abuse and his escalating delinquent behaviors, the court concluded that Ian would be better served in a system that could provide a higher level of supervision and services. Contrary to the minor's complaint, these services were not limited to drug testing but instead included support and consequences in the school setting and the foster home designed to allow the minor to remain in the community. It also allowed for the electronic search condition discussed further below to monitor Ian's drug use and future criminality. All but delinquency counsel agreed with the juvenile court's assessment of the situation. We find no abuse of discretion in the juvenile court's section 241.1 determination.
We reject Ian's suggestion that if Napa County has a written protocol allowing dual status jurisdiction, the juvenile court should have considered that option for him. (See § 241.1, subd. (e) [minor may be designated a “dual status child” and treated as both a juvenile court dependent and ward where a county has adopted a written protocol in accordance with the statute].) Having failed to provide any evidence that a dual-status protocol has been adopted in Napa County, the minor has no basis for asserting error on this ground.
C. The Electronics Search Condition is Valid
At the dispositional hearing on December 11, 2019, the juvenile court imposed an electronics search condition recommended by probation, which provides in relevant part: “The minor shall submit all electronic devices under his or her control to search and seizure at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. This search shall be confined to areas of the electronic devices where evidence likely to reveal criminal activity or probation violations may be found. The minor shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device and applications where evidence likely to reveal criminal activity [or] probation violations may be found as requested by any law enforcement or probation officer.”
Minor's counsel objected to the probation condition “as not being reasonably related to the crimes, ” citing In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The juvenile court overruled the objection, reasoning that the supplemental report from probation dated December 10, 2019 was “replete with evidence and information, allegations that Ian was using his telephone to sell drugs, and that certainly survives [People v. Lent (1975) 15 Cal.3d 481 (Lent)] and [Ricardo P.]” Although his analysis is not entirely clear, it appears that Ian is arguing on appeal that the electronics search condition at issue in unreasonable under Lent because, pursuant to Ricardo P., there is insufficient justification for its broad scope. He suggests that the condition be modified to confine any searches of electronic information to those that are “reasonably likely to reveal whether [he] was using or selling drugs.” We are not persuaded.
We do not reach the question whether the challenged probation condition is constitutionally overbroad because the minor's objection is based solely on Ricardo P., which considered the third prong of the Lent reasonableness analysis (Ricardo P., supra, 7 Cal.5th at p. 1118-1119). Ian has forfeited any separate constitutional claim. (See In re P.O. (2016) 246 Cal.App.4th 288, 297 (P.O.).)
In Ricardo P., the Supreme Court held that Lent's third prong-which requires a valid probation condition to be “ ‘ “reasonably related to future criminality”' ”-“contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) Moreover, it “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) However, Ricardo P. rejected the notion that there must be a nexus between the probation condition and the underlying offense. (Id at p. 1122.) Rather, “ ‘[c]ourts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to' past criminal conduct.” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166; see also Ricardo P., at p. 1122.)
The minor in Ricardo P. admitted to charges of burglary and was subjected to a very broad electronics search condition at disposition, ostensibly to monitor his drug usage. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) There was “no suggestion in the record... that Ricardo [had] ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity.” (Id. at p. 1119.) Nevertheless, the juvenile court justified imposition of the monitoring condition on the assumption that “minors typically will brag about their marijuana usage or drug usage” online. (Id. at pp. 1117-1118.) The Supreme Court found the electronics search condition unreasonable under Lent's third prong. (Id. at p. 1124.) Noting the vast amount of electronic data potentially subject to disclosure pursuant to the electronics search condition (id. at p. 1123), the high court concluded it imposed “a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety” (id. at p.1129; see also id. at p. 1119.). In short, “[a] probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a ‘reasonable' one.” (Id. at p. 1128.)
In contrast to Ricardo P., here there was evidence in the record that Ian was using an electronic device to facilitate drug sales and to memorialize his own drug usage on social media. As the Ricardo P. court emphasized, its holding did not “categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) This case certainly qualifies. (See id. at p. 1129.) Indeed, the minor concedes as much.
Ian argues, however, that in order to be reasonable under Lent and Ricardo P., the electronics probation condition must be modified to limit any electronics searches to those “reasonably likely to reveal whether [he] was using or selling drugs.” We disagree. As Ricardo P. instructs, the appropriate analysis in such matters is “whether, in light of ‘the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation.” (Ricardo P., supra, 7 Cal.5th at p. 1127.) Monitoring the minor's electronics for evidence of “criminal activity or probation violations” as ordered here would help achieve a legitimate end of probation because it would allow the probation officer to identify and respond to any criminal or impermissible activity reflected by the search, thereby helping the minor to stay on track and complete probation successfully.
We also question whether the challenged probation condition is any more burdensome than the minor's proposed condition of monitoring for drug sales or drug use. A search to find evidence of drug sales would encompass the same electronics search as a search for “criminal activity.” Similarly, the minor must refrain from drug possession and usage pursuant to another probation condition. Thus, searches limited to areas where “any probation violations” are found would be similar to those used to uncover any impermissible drug usage. Since the ends of the existing probationary terms in this case are legitimate and appear to impose no additional burden on Ian's privacy rights than the language he proposes, we find no basis to modify the probation condition.
D. The Restitution Fines
The dispositional order in this case requires Ian to pay “a restitution fine of $50.00” pursuant to section 730.6, subdivision (b) and a “fine of $50.00” pursuant to section 730.5. The minor argues that both fines must be stricken because they were not orally imposed by the juvenile court, appearing only in the minute order. He further claims, and the People concede, that the juvenile court's imposition of the restitution fine under section 730.6 was unauthorized under the terms of that statute. Finally, Ian also challenges the section 730.5 restitution fine on grounds of ability to pay.
We agree with the parties that the restitution fine imposed pursuant to section 730.6 was unauthorized. Pursuant to that statute, “[i]f a minor is found to be a person described in Section 602, the court shall impose a separate and additional restitution fine.” (§ 730.6, subd. (b).) The fine is set commensurate with the seriousness of the offense and, for misdemeanor offenses, may not exceed $100. (Id., subd. (b)(2).) However, subdivision (g)(2) of section 730.6 creates an exception, waiving imposition of the fine when “the minor is a person described in subdivision (a) of Section 241.1.” Although Ian was ultimately declared a ward of the juvenile court pursuant to section 602, there is no doubt that he “appears to come within the description” of both the dependency and the delinquency statutes. Thus, under the plain meaning of the relevant provisions, the $50 restitution fine imposed on the minor pursuant to section 730.6 must be stricken. (See Aaron J., supra, 22 Cal.App.5th at p. 1060.)
We disagree with the minor, however, that the fine imposed by the juvenile court pursuant to section 730.5 must also be stricken because it was not orally imposed by the juvenile court. While the juvenile court did not specifically mention the fine during disposition, it did indicate that it was adopting “the terms and conditions set forth in Probation's report and these are terms and conditions 1 through 31.” The fine under section 730.5 was set forth in the probation report as recommendation 27. Moreover, the court gave minor's counsel the opportunity to object to probation's recommendations and, while she objected to several, she did not challenge number 27. Since the minute order accurately reflected the oral judgment imposed in this case, People v. Zackery (2007) 147 Cal.App.4th 380, 387-389cited by the minor is inapposite. Moreover, Ian has forfeited any ability-to-pay argument because he did not raise the issue in the juvenile court and, pursuant to section 730.5, the juvenile court is expressly instructed by that statute to consider ability to pay. (Compare People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 (Gutierrez) [finding forfeiture of ability-to-pay challenge to maximum restitution fine, noting that “even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay”].) Here, we presume the juvenile court impliedly found either Ian or his parents able to pay the $50 fine. (§ 730.7, subd. (a); People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836-1837.)
E. Correction of the Minute Order
Finally, Ian asserts that the minute order for the December 11, 2019 dispositional hearing must be corrected in two respects. The minor first points to the statement in the dispositional minute order, stating: “The Court adopts the Probation Officer's recommendations contained in items Number 1 through 31 of the Order After Hearing executed this date.” He argues this is error because the court struck condition 7. However, the minute order states that the court adopted the recommendations as contained in the order after the hearing and, in that order, number 7 has clearly been stricken. There is thus no need for any correction. Ian additionally contends that we should correct the minute order to state that the dispositional hearing was “contested” rather than “uncontested, ” because minor's counsel argued against his recommended placement in residential treatment. We are aware, however, that some juvenile courts use the term “contested” only for full hearings in which witnesses are called. The dispositional hearing in this case proceeded only by argument. Since the minor was not prejudiced in any way by this designation and we have not been presented with clear evidence that an error has occurred, we leave it to counsel the raise the matter before the juvenile court if deemed necessary.
III. DISPOSITION
The $50 fine imposed pursuant to section 730.6 is ordered stricken, and the juvenile court is directed to amend its dispositional order of December 11, 2019, to reflect this fact. In all other respects, the judgment is affirmed.
We concur. HUMES, P.J., MARGULIES, J.