California’s Military Courts

California’s Military and Veterans Code, in Division 2, Part 1, Chapter 9, provides for military courts. Section 450 provides the military courts of this state are: (a) general courts-martial; (b) special courts-martial; (c) summary courts-martial; (d) courts of inquiry; and (e) Courts-Martial Appellate Panel.

Section 450.1 provides that limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this section to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon that demand.

Except in the case of the imposition of fines upon officers and warrant officers, punishment may not be imposed upon any member of the California National Guard under this section if the member has, before the imposition of punishment, demanded trial by court-martial in lieu of punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized.

If authorized by regulations of the Adjutant General, a commanding officer who under the Uniform Code of Military Justice would exercise general court-martial jurisdiction or an officer of general rank in command may delegate his or her powers under this section to a principal assistant. In addition to or in lieu of admonition or reprimand, impose one or more of the specified disciplinary punishments for minor offenses without the intervention of a court-martial.

Punishments can only be imposed during annual active duty for training or active state service, except that extra duties may be imposed upon enlisted persons while in armory drill status for two hours (to be completed not later than 2400 hours) for two consecutive drills. Detention of pay is for a stated period of not more than one year but if the offender’s term of service expires earlier, the detention shall terminate upon that expiration.

An officer in charge may impose upon enlisted members assigned to the unit of which he or she is in charge any of the punishments authorized as the Adjutant General may specifically prescribe by regulation. The officer may also mitigate reduction in grade to a fine or detention of pay. A person punished under this section who considers his or her punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority.

Section 451 provides that the constitution and jurisdiction of general courts-martial, special courts-martial, summary courts-martial, and courts of inquiry, the form and manner in which the proceedings are conducted and recorded, the forms of oaths and affirmations taken in the administration of military law by such courts, the limits of punishment, and the proceedings in the revision thereof, are to be governed by the terms of the laws and regulations governing the United States Army, Air Force, or Navy, and the law and procedure of similar courts of the United States Army, Air Force, or Navy, except as otherwise provided in this chapter.

The provisions of the Uniform Code of Military Justice, and the rules and regulations published thereunder, govern the active militia, including the California National Guard, except as otherwise provided in this code, the California Manual for Courts-Martial, or other regulations as adopted by the Governor or Adjutant General.

Section 452 allows general courts-martial to be convened by the President of the United States or the Governor or the Adjutant General. The convening authority must be the approving, reviewing and confirming authority. After authentication the record will be sent by the trial counsel to the reviewing authority for proper action and will thereafter be filed in the Office of the Adjutant General.

Section 453 authorizes special courts-martial to be appointed by the commanding officer of a district, garrison, fort, post, camp, station, or other place where troops are on duty, division, brigade, regiment, detached battalion, or other detached command or corresponding unit of Army or Air Force, and by the commanding officer of any group of detached units placed under a single commander for this purpose.

Special courts-martial may be composed of either one officer who is a field grade officer of the rank of major, lieutenant colonel or colonel or three or more members as provided for in the Uniform Code of Military Justice and the rules and regulations published thereunder.

Section 454 allows summary courts-martial to be appointed by the commanding officer of a garrison, fort, post, camp, or other place where troops are on duty, regiment, detached battalion, detached company, or other detachment; but those summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Except when only one officer is present with a command, he or she is the summary courts-martial of that command and shall hear and determine cases brought before him or her.

Section 455 requires courts of inquiry to consist of at least three members and may be ordered by the Governor to examine into the nature of any transaction of or accusation or imputation against any officer or enlisted person. The courts are not to be ordered except upon the request of the officer concerned or whose conduct is to be inquired into or upon the request of the enlisted person concerned. The members of the court may be officers or qualified enlisted persons, and the court may include both officers and qualified enlisted persons.

The practice and procedure of the court of inquiry are to be in accordance with the Articles of War and like tribunals appointed for similar purposes in the United States Army, United States Air Force, and United States Navy.

Section 455.1 requires the Courts-Martial Appellate Panel to consist of three justices to hear matters. The Governor, by general order, must appoint the three justices who have experience and training in the field of military law. The panel conducts itself as a three-justice court.

A justice is not liable civilly or criminally for any act or acts done by them in the performance of his or her duty. A justice is subject to a code of judicial conduct in accordance with applicable the United States Army and the United States Air Force regulations.

Section 456 provides general courts-martial have power to try commissioned officers, warrant officers, and enlisted members of the active militia; to adjudge; dismissal, in the case of a commissioned or warrant officer; dishonorable discharge, in the case of an enlisted member; and any other punishment authorized for a special court-martial handling analogous charges.

Section 457 provides special courts-martial have power to try commissioned officers, warrant officers, and enlisted members of the active militia; and to adjudge any punishment authorized for a special court-martial handling analogous charges.

Section 458 provides that summary courts-martial have power to try enlisted members of the active militia unless they object; and adjudge any punishment authorized for a summary court-martial handling analogous charges under the Uniform Code of Military Justice and the federal Manual for Courts-Martial.

Section 458.1 provides the Courts-Martial Appellate Panel have power over the issuance of extraordinary writs, as well as adjudicating appeals of sentences of a court-martial that have been approved by the convening authority. The practices and procedures of the Courts-Martial Appellate Panel follow the federal Manual for Courts-Martial described in Section 102 and the California Manual for Courts-Martial.

Section 458.2 provides that, with regard to any matter adjudicated by the Courts-Martial Appellate Panel, the reported decisions of the United States Court of Appeals for the Armed Forces has direct precedential authority to such matters unless otherwise directed by the Courts-Martial Appellate Panel. Precedential decisions of the Courts-Martial Appellate Panel are required to be posted in a conspicuous place.

Section 459 requires the trial counsel of a general or special court-martial in the National Guard to prosecute in the name of the State. If military authorities order the arrest by civil authorities of military persons for trial before a military court, the arrested persons can be admitted to bail by any civil magistrate within the county wherein the arrest is made. 

Section 460 requires each military court to have the power of a superior court of this State to compel by subpoena, subpoena duces tecum, and attachment, the attendance of witnesses, both civilian and military, and the production of books, papers, and documents, and to punish for contempt a witness duly subpoenaed for nonattendance or for refusal to be sworn or testify or to produce books, papers, and documents. 

Section 461 authorizes commission and subpoenas to be issued by the president or the trial counsel of the court, both before and after being sworn, for witnesses whose attendance or testimony before the court may be necessary in behalf of the prosecution.

Section 462 specifies that a witness not appearing in obedience to a subpoena when served personally with a copy, and not having sufficient excuse, or a witness refusing to obey any lawful order of the court, will forfeit to the State the sum of $25. 

Section 463 authorizes military courts to issue all process and mandates, including writs and warrants, necessary and proper to carry into full effect the powers vested in those courts. Process or mandates may be directed to the sheriff of any county, any peace officer, the police of any city and the marshals of any town or city, or to any officer or enlisted person appointed by the court to serve or execute process or mandates.

Section 464 requires the keepers or warden of any jail to receive the bodies of persons committed by the process or mandate of a military court and confine them in the manner prescribed by law.

Section 465 requires the presidents of courts-martial, one-officer special courts-martial, and summary court officers to have power to issue warrants to arrest an accused person and to bring him or her before the court for trial. A court must be ordered for his or her trial within the time similarly prescribed by the rules and regulations of the United States Army.

Section 466 states that no sentence of a court-martial is to be carried into execution until the proceedings have been reviewed and the sentence approved by the officer appointing the court or by the officer commanding for the time being.

Section 467 provides that, for the purpose of collecting fines or penalties imposed by a court-martial, the president of any general or special court-martial and the summary court officer of any summary court must make a list of all fines and penalties and of the persons against whom they have been imposed, and may thereafter issue a warrant under his or her hand directed to any sheriff or marshal of the county.

Section 468 states that any person who is guilty of disorderly, contemptuous, or insolent behavior in a military court, or who uses insulting, contemptuous, or indecorous language or expression to or before a military court, or any member of such court in open court, tending to interrupt its proceedings or to impair the respect due to its authority, or who commits any breach of the peace or makes any noise or other disturbance directly tending to interrupt its proceedings, may be committed by warrant under the hand of the president of the court, or summary court officer, to the jail of the city or county in which such court sits, there to be confined for a period not to exceed three days.

Section 469 states that a person who has been separated from the military service is subject to the jurisdiction of a lawfully appointed court-martial for trial and punishment for offenses committed during his military service. If that person is found guilty, he or she is punished according to the Articles of War and the rules and regulations of the United States Army within the limits prescribed by this division and the Federal law for courts-martial of the National Guard.

Section 470 provides that, when the military offense charged is also an offense by the civil law of this State, the officer whose duty it is to order trial may order the person charged to be turned over to the civil authorities for trial.

Section 470.5 specifies that a member of the active militia who, when subject to the Uniform Code of Military Justice (UCMJ) as incorporated by this code, violates a provision of the Penal Code for a sexual assault crime, or an attempt of that offense, will be subject to prosecution by the office of the district attorney or other equivalent civilian prosecutorial authority with appropriate jurisdiction. The Military Department or California National Guard may claim jurisdiction only under the UCMJ as incorporated by this code, if the district attorney, or other equivalent civilian prosecutorial authority, refuses to pursue a criminal prosecution of that member. There are several procedural requirements for sexual assault crime cases. The terms “sexual assault crime” and “qualifying sexual assault offense” are defines.

Section 471 provides that, whenever any person in the military service of the State is charged with the commission while on duty of an offense which is a felony under the laws of this State, he must be delivered by his superior officer or officers to the proper civil authorities of the county or city in which the offense occurred for trial. Trial and punishment by civil authorities do not preclude trial and additional punishment by court-martial for any military offense resulting from commission of the felony.

Section 472 says that no officer by whom a military court is ordered or member of any military court, or officer or person acting under its authority or reviewing the proceedings thereof or enforcing the process or sentence is liable civilly or criminally for any act done in that capacity.

Section 473 states that courts for the Naval Militia are provided for by Section 300. Section 474 allows the Adjutant General, acting through a board of officers appointed by the Adjutant General, to correct any military record of a member of the California National Guard when he or she considers it necessary to correct an error or remove an injustice.

Section 475 provides that any person who is guilty of sexual harassment may be punished as a court-martial may direct. This section applies to all members of the active militia who have been lawfully ordered to any type of state duty, but this section does not apply to offenses committed by members of the active militia who were not in a duty status. The term “sexual harassment” is defined.