Code Section Group

Military and Veterans Code - MVC

DIVISION 2. THE MILITARY FORCES OF THE STATE [100 - 567]

  ( Division 2 enacted by Stats. 1935, Ch. 389. )

PART 1. THE STATE MILITIA [100 - 491.3]

  ( Part 1 enacted by Stats. 1935, Ch. 389. )

CHAPTER 9. Military Courts [450 - 474]
  ( Chapter 9 enacted by Stats. 1935, Ch. 389. )

450.
  

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.

(Amended by Stats. 2013, Ch. 322, Sec. 1. (AB 1410) Effective January 1, 2014.)

450.1.
  

(a) Under regulations as the Governor may prescribe, and under any additional regulations as may be prescribed by the Adjutant General, 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 hereunder. 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.

(b) Subject to subdivision (a), any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

(1) Upon officers of his or her command:

(A) Restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days.

(B) If imposed by an officer who under the Uniform Code of Military Justice would exercise general court-martial jurisdiction or an officer of general rank in command:

(i) Arrest in quarters for not more than 30 consecutive days.

(ii) Impose a fine of not more than 15 days pay per month for two months.

(iii) Restriction to certain specified limits with or without suspension from duty for not more than 60 consecutive days.

(iv) Detention of not more than 15 days’ pay per month for three months.

(2) Upon other personnel of his or her command:

(A) Correctional custody for not more than seven consecutive days.

(B) Impose a fine of not more than seven days’ pay.

(C) Reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction.

(D) Extra duties, including fatigue or other duties, for not more than 14 consecutive days.

(E) Restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days.

(F) Detention of not more than 14 days’ pay.

(G) If imposed by an officer of the grade of major or above:

(i) Correctional custody for not more than 30 consecutive days.

(ii) Impose a fine of not more than 15 days’ pay per month for two months.

(iii) Reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades.

(iv) Extra duties, including fatigue or other duties, for not more than 45 consecutive days.

(v) Restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days.

(vi) Detention of not more than 15 days’ pay per month for three months.

The punishments heretofore prescribed by subdivision (b) (1) A, B(i) and (iii) and subdivision (b) (2) A, D, E, G(i), (iv) and (v) hereof may be imposed only 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 shall be 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. No two or more of the punishments of arrest in quarters, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever any of those punishments are combined to run consecutively, there shall be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes of this subdivision, “correctional custody” means the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor. If practicable, correctional custody shall not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

(c) 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 under subdivision (b)(2)(A) to (G), inclusive, as the Adjutant General may specifically prescribe by regulation.

(d) The officer who imposes the punishment authorized in subdivision (b), or his or her successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a fine imposed under subdivision (b), whether or not executed. In addition, the officer may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. The officer may also mitigate reduction in grade to a fine or detention of pay. When mitigating:

(1) arrest in quarters to restriction;

(2) correctional custody to extra duties or restriction, or both; or

(3) extra duties to restriction;

the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating a fine to detention of pay, the amount of the detention shall not be greater than the amount of the fine. When mitigating reduction in grade to a fine or detention of pay, the amount of the fine or detention shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.

(e) 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. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subdivision (d) by the officer who imposed the punishment. Before acting on an appeal from a punishment of:

(1) arrest in quarters for more than seven days;

(2) correctional custody for more than seven days;

(3) a fine of more than seven days’ pay;

(4) reduction of one or more pay grades from the fourth or a higher pay grade;

(5) extra duties for more than 14 days;

(6) restriction for more than 14 days; or

(7) detention of more than 14 days’ pay;

the authority who is to act on the appeal shall refer the case to a judge advocate of the California National Guard for consideration and advice, and may so refer the case upon appeal from any punishment imposed under subdivision (b).

(f) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

(g) The Adjutant General may, by regulation, prescribe the form of records to be kept of proceedings under this article and may also prescribe that certain categories of those proceedings shall be in writing.

(Amended by Stats. 2018, Ch. 118, Sec. 38. (SB 1501) Effective January 1, 2019.)

451.
  

(a) 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, shall 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.

(b) The provisions of the Uniform Code of Military Justice, and the rules and regulations published thereunder, shall govern and be applicable to 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.

(c) (1) Notwithstanding subdivision (b), an attempt by a member of the active militia, including the California National Guard, to kill himself or herself shall not be prosecuted as a military crime.

(2) The Adjutant General shall ensure that any member of the active militia that attempts to kill himself or herself shall be referred, as soon as practically possible, to the department’s Behavioral Health Liaison Program, or its successor, to receive assistance, counseling, or referral to other appropriate available services.

(Amended by Stats. 2016, Ch. 328, Sec. 1. (AB 2273) Effective January 1, 2017.)

452.
  

General courts-martial may be convened by the President of the United States or the Governor or the Adjutant General. The convening authority shall 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.

(Amended by Stats. 1955, Ch. 728.)

453.
  

Special courts-martial may 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. Such courts-martial may also be appointed by superior authority when by the latter deemed desirable. When any such commanding officer is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior authority. Special courts-martial may be composed of either one officer who shall be 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. After final action by the reviewing authority the record of the trial by special courts-martial shall be filed in the office of the Adjutant General.

(Amended by Stats. 1967, Ch. 587.)

454.
  

Summary courts-martial may 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 shall be the summary courts-martial of that command and shall hear and determine cases brought before him or her. After final action by the reviewing authority an authenticated copy of the completed charge sheet shall be filed in the office of the Adjutant General.

(Amended by Stats. 1994, Ch. 114, Sec. 53. Effective January 1, 1995.)

455.
  

Courts of inquiry shall 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 shall not 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 shall 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. The court shall, without delay, report to the officer ordering it, the evidence adduced, a statement of the facts, and, when required, an opinion thereon.

Boards for conducting investigations and investigating officers may be appointed in accordance with the rules and regulations adopted for the appointment of similar boards and officers in the United States Army, United States Air Force, and United States Navy.

(Amended by Stats. 2018, Ch. 118, Sec. 39. (SB 1501) Effective January 1, 2019.)

455.1.
  

(a) The Courts-Martial Appellate Panel shall consist of three justices to hear matters described in Section 458.1. The Governor, by general order, shall appoint the three justices who have experience and training in the field of military law. The panel shall conduct itself as a three-justice court.

(1) A justice shall not be liable civilly or criminally for any act or acts done by them in the performance of his or her duty, as described in Section 472.

(2) A justice shall be subject to a code of judicial conduct in accordance with applicable the United States Army and the United States Air Force regulations.

(3) A justice shall sit for four years upon which his or her appointment shall be terminated or upon acceptance of his or her resignation by the Adjutant General, whichever occurs first.

(4) A justice shall be paid at the rate of a federal O-6, a military pay grade, only while in session.

(b) The Courts-Martial Appellate Panel may be convened by the President of the United States, the Governor, or the Adjutant General.

(Added by Stats. 2013, Ch. 322, Sec. 2. (AB 1410) Effective January 1, 2014.)

456.
  

General courts-martial have power:

(a) To try commissioned officers, warrant officers, and enlisted members of the active militia.

(b) To adjudge:

(1) Dismissal, in the case of a commissioned or warrant officer.

(2) Dishonorable discharge, in the case of an enlisted member.

(3) Any other punishment authorized for a special court-martial handling analogous charges under the Uniform Code of Military Justice and the federal Manual for Courts-Martial, including, but not limited to, up to one year in confinement.

(Amended by Stats. 2006, Ch. 358, Sec. 1. Effective January 1, 2007.)

457.
  

Special courts-martial have power:

(a) To try commissioned officers, warrant officers, and enlisted members of the active militia.

(b) To adjudge any punishment authorized for a special court-martial handling analogous charges under the Uniform Code of Military Justice and the federal Manual for Courts-Martial, but in no case more than 180 days in confinement.

(Amended by Stats. 2006, Ch. 358, Sec. 2. Effective January 1, 2007.)

458.
  

Summary courts-martial have power:

(a) To try enlisted members of the active militia unless they object thereto.

(b) To 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, including, but not limited to, up to 30 days in confinement.

(Amended by Stats. 2006, Ch. 358, Sec. 3. Effective January 1, 2007.)

458.1.
  

The Courts-Martial Appellate Panel shall have power over the following:

(a) The issuance of extraordinary writs relative to all matters arising under the following:

(1) The provisions of this code.

(2) The Uniform Code of Military Justice.

(3) Any regulation issued by the Governor pertaining to members of the California active militia.

(4) Court-martial actions pending before any military judge of the California Military Department.

(b) Adjudicating appeals of sentences of a court-martial that have been approved by the convening authority, as described in Section 455.1, and which include:

(1) Dismissal, in the case of a commissioned or warrant officer.

(2) Dishonorable discharge, in the case of an enlisted person.

(3) Bad-conduct discharge, in the case of an enlisted person.

(4) Forfeiture of all pay and allowances.

(5) Any confinement.

(c) The practices and procedures of the Courts-Martial Appellate Panel shall follow the federal Manual for Courts-Martial described in Section 102 and the California Manual for Courts-Martial.

(Amended by Stats. 2018, Ch. 118, Sec. 40. (SB 1501) Effective January 1, 2019.)

458.2.
  

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 shall have direct precedential authority to such matters unless otherwise directed by the Courts-Martial Appellate Panel. Precedential decisions of the Courts-Martial Appellate Panel shall be posted in a conspicuous place.

(Added by Stats. 2013, Ch. 322, Sec. 4. (AB 1410) Effective January 1, 2014.)

459.
  

The trial counsel of a general or special court-martial in the National Guard shall 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, such arrested persons can be admitted to bail by any civil magistrate within the county wherein the arrest is made. The admission to, taking of and release upon bail shall be in accordance with applicable provisions and principles of the California Penal Code.

(Amended by Stats. 1951, Ch. 408.)

460.
  

Each miliary court shall have the power of a superior court of this State to compel by subpena, subpena 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 subpenaed for nonattendance or for refusal to be sworn or testify or to produce books, papers, and documents. Military courts may also take by commission the testimony of witnesses who can not reasonably be produced at the trial in the same manner as a superior court.

(Enacted by Stats. 1935, Ch. 389.)

461.
  

Commissions and subpenas may 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 such court may be necessary in behalf of the prosecution, and upon application in behalf of any person to be tried by such court, either the president or the trial counsel may direct the commanding officer of any organization to cause such subpena to be served on any member of his command.

(Amended by Stats. 1951, Ch. 408.)

462.
  

A witness not appearing in obedience to a subpena when served personally with a copy thereof, and not having sufficient excuse, or a witness refusing to obey any lawful order of the court, shall forfeit to the State the sum of twenty-five dollars. The president of each court, or summary court officer, shall, from time to time, report to the senior Judge Advocate on the State staff the names of all such delinquent witnesses, together with the names and places of residence of the persons serving such subpenas. A Judge Advocate may sue for and recover such penalties in the name of the people of the State.

(Enacted by Stats. 1935, Ch. 389.)

463.
  

Military courts may 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. All officers to whom process or mandates are directed shall execute the process or mandates and make return of their acts thereunder according to the requirements thereof.

(Amended by Stats. 2018, Ch. 118, Sec. 41. (SB 1501) Effective January 1, 2019.)

464.
  

The keepers or warden of any jail shall receive the bodies of persons committed by the process or mandate of a military court and confine them in the manner prescribed by law. Except as otherwise specially provided in this division, no fees or charges of any nature shall be demanded or required to be paid by the State, or any military court or member thereof, or by the person executing its mandate or process, or by any public officer for receiving, executing, or returning any such process or mandate, or for any service in connection therewith, or for receiving or confining the person in jail or custody thereunder. Minors shall be confined in a detention home or equivalent place of confinement, and shall not be confined in a jail with other persons. Persons committed by the process or mandate of a military court shall not be photographed or fingerprinted unless such process or mandate expressly so directs.

(Amended by Stats. 1951, Ch. 408.)

465.
  

Presidents of courts-martial, one-officer special courts-martial, and summary court officers shall have power to issue warrants to arrest an accused person and to bring him or her before the court for trial. A court shall be ordered for his or her trial within the time similarly prescribed by the rules and regulations of the United States Army. If a copy of the charges and specifications is not served, or a court is not ordered within the time herein limited, the arrest shall cease, but the charges and specifications may be served, a court ordered, and the officer or enlisted person be brought to trial after the release from arrest within the time prescribed by the rules and regulations of the United States Army in similar circumstances. The appearance of the accused, without objection and pleading to the charges, shall be a waiver of any defect or irregularity of service of any of the papers mentioned in this section.

(Amended by Stats. 2018, Ch. 118, Sec. 42. (SB 1501) Effective January 1, 2019.)

466.
  

No sentence of a court-martial shall 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.

(Enacted by Stats. 1935, Ch. 389.)

467.
  

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 shall 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, commanding him or her to levy and collect the fines and penalties, together with the costs, upon and out of the property of the person against whom the fine or penalty is imposed. The warrant shall be executed and renewed in the same manner as executions under the Code of Civil Procedure.

All fines collected under this section or imposed and collected under Section 450.1 shall be paid by the officer collecting them to the commanding officer of the organization of which the person fined is or was a member and shall be deposited by the commanding officer into the General Fund.

(Amended by Stats. 1998, Ch. 931, Sec. 350. Effective September 28, 1998.)

468.
  

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.

(Enacted by Stats. 1935, Ch. 389.)

469.
  

A person who has been separated from the military service shall be subject to the jurisdiction of a lawfully appointed court-martial for trial and punishment for offenses committed during his military service.

If such person is found guilty, he shall be 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.

(Enacted by Stats. 1935, Ch. 389.)

470.
  

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; provided, such officer shall turn over such person to the civil authorities in the cases described in Section 471.

(Amended by Stats. 1947, Ch. 393.)

470.5.
  

(a) 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 as defined in subdivision (c), or an attempt of that offense, shall 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.

(b) (1) Subject to subdivision (a), a member of the active militia recommended for court-martial pursuant to an Article 32 hearing (10 U.S.C. Sec. 832), as authorized by the UCMJ as incorporated by this code, for a qualifying sexual assault offense, as defined in subdivision (d), shall be tried by general court-martial.

(2) Notwithstanding any other provision of the UCMJ as incorporated by this code, a convening authority in the California National Guard or in the Military Department, as authorized by the UCMJ as incorporated by this code, shall not overturn a conviction for a qualifying sexual assault offense issued by a general court-martial. On appeal, the convening authority shall dispose of the case in accordance with the decision of the Courts-Martial Appellate Panel, as authorized by this code.

(3) A member of the active militia who is found guilty of a qualifying sexual assault offense, or an attempt of that offense shall be punished as the general court-martial may direct, subject to Section 456, and that punishment shall include, at a minimum, dismissal or dishonorable discharge.

(4) There is no statute of limitations for a member of the active militia to be charged with a qualifying sexual assault offense, when tried and punished by a general court-martial as provided in this section.

(c) For purposes of this section, “sexual assault crime” means conduct constituting any of the crimes defined in the following provisions of the Penal Code:

(1) Section 243.4 of the Penal Code.

(2) Chapter 1 (commencing with Section 261) of Title 9 of Part 1 of the Penal Code.

(3) Section 286 of the Penal Code.

(4) Subdivision (a) or (b), or paragraph (1) of subdivision (c), of Section 288 of the Penal Code.

(5) Section 647.6 of the Penal Code.

(d) For purposes of this section, a “qualifying sexual assault offense” under the Uniform Code of Military Justice is one that violates any of the following provisions of that code, or an attempt thereof:

(1) Subdivision (a) or (b) of Article 120 (10 U.S.C. Sec. 920(a) and (b)).

(2) Article 120b (10 U.S.C. Sec. 920b).

(3) Article 125 (10 U.S.C. Sec. 925).

(e) Sex offender registration requirements for state military convictions contained in Sections 290 to 290.024, inclusive, of the Penal Code, are applicable to persons convicted of a qualifying sexual assault offense, or of the attempt or conspiracy to commit that offense.

(Added by Stats. 2014, Ch. 228, Sec. 2. (SB 1422) Effective January 1, 2015.)

471.
  

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 shall 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 shall not preclude trial and additional punishment by court-martial for any military offense resulting from commission of the felony.

(Enacted by Stats. 1935, Ch. 389.)

472.
  

No officer by whom a military court is ordered or member of any such military court, or officer or person acting under its authority or reviewing the proceedings thereof or enforcing the process or sentence thereof shall be liable civilly or criminally for any act done in such capacity.

(Enacted by Stats. 1935, Ch. 389.)

473.
  

Courts for the Naval Militia are provided for by section 300.

(Enacted by Stats. 1935, Ch. 389.)

474.
  

The Adjutant General, under procedures established by him or her and approved by the Governor, and acting through a board of officers appointed by the Adjutant General, may 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.

(Amended by Stats. 1994, Ch. 114, Sec. 59. Effective January 1, 1995.)

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