San Diego Military Assault Lawyer
Military Assault in San Diego
Any act that is not in self-defense and causes or tries to cause the offensive touching of another using unlawful force will be considered an assault. Assault is an offense that violates both California Penal Code Section 240 and Article 128 of the Uniform Code of Military Justice. For the civilian prosecution of assault under California Penal Code Section 240, please refer to the Assault and Battery Practice Area of our website.
Civilian Jurisdiction vs. Military Jurisdiction
Civilian jurisdiction over a case is determined by where the offense occurred. The authority of Section 240 of the California Penal Code is limited to assaults that occur within the boundaries of the state of California, whereas military jurisdiction over a case is determined by the military status of the offender. The authority of Article 128 of the Uniform Code of Military Justice applies to all active duty members of the armed forces regardless of where the assault took place.
In effect, active duty military service members can be charged for assault in civilian state court and/or federal court-martial. Double jeopardy will not attach because the federal government and state government are considered separate court systems. Ultimately, where assault charges are filed will depend on the nature of the assault, the identity of the victim, and whether a weapon was used in the commission of the assault.
Understanding Uniform Code of Military Justice Article 128
Pursuant to UCMJ Article 128, “any person who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.” An assault occurs when a service member attempts or offers to physically harm another person with the unlawful application of force.
However, mere preparation to commit an assault is insufficient for a service member to be charged with assault. For instance, making a verbal threat to another person is not enough to constitute an assault. An assault would require that a threatening gesture immediately follow the verbal threat.
Attempt: Requires an overt act that demonstrates the service member’s specific intent to inflict bodily injury on another person. It is important to note that a reasonable apprehension of fear in that person is not necessary.
Offer: Requires that the service member demonstrate unlawful violence either through intentional or negligent conduct, creating a reasonable apprehension of fear in the victim. It is important to note that specific intent to use force against that person is not necessary.
Apprehension of Fear: Reasonable belief that immediate harmful offensive contact will occur.
Application of Force: The unlawful touching another in a harmful or offensive manner, no matter how slight. This can be done by direct physical contact with the person or indirectly by causing contact through another person or with an object.
Of Another: The person’s body, clothing or something attached to their person.
Command’s Burden of Proof for Military Assault Charges in San Diego
Simple Assault
The burden is on your command to prove each of the following elements beyond a reasonable doubt for a conviction of simple assault:
- Service member willfully;
- Attempted or offered;
- To inflict bodily harm on another;
- By means of unlawful force;
- The service member was not acting in self-defense.
Aggravated Assault
If the service member commits an assault under any of the following circumstances, he or she will face charges for aggravated assault:
- Commits an assault with a dangerous weapon or force likely to produce death or severe bodily injury.
- Commits an assault and intentionally inflicts severe bodily injury with or without a weapon.
Military Penalties for Assault
Simple Assault
A conviction for simple assault under Article 128 of the UCMJ carries the following penalties:
- Heavy Fines;
- Loss of Rank;
- A maximum of three months of confinement;
- Forfeiture of pay for up to three months;
Aggravated Assault
A conviction for aggravated assault under Article 128 of the UCMJ carries the following penalties:
- Heavy Fines;
- Loss of Rank;
- Three to ten years of confinement;
- Forfeiture of pay and allowances;
- Dishonorable discharge.
Military Enhancements for Assault
If the service member is charged for the assault of any of the following special victims, their sentence will be enhanced:
Children
Under the age of sixteen:
- A maximum of five years of confinement;
- Total Forfeiture;
- Dishonorable discharge.
Officers
Commissioned:
- A maximum of three years of confinement;
- Forfeiture of pay and allowances;
- Dishonorable discharge.
Warrant:
- A maximum of eighteen months of confinement;
- Forfeiture of pay and allowances;
- Dishonorable discharge.
Petty:
- A maximum of six months of confinement;
- Forfeiture of pay and allowances;
- Bad conduct discharge.
Sentinels
Law Enforcement On Duty:
- A maximum of two years of confinement;
- Forfeiture of pay and allowances;
- Dishonorable discharge.
Your Best Defense against Military Assault Charges in San Diego
Assault charges can have very serious repercussions in the military. For active duty military members facing assault charges, it is imperative that you speak with a San Diego criminal lawyer who is competent in both the criminal justice system and military legal system.
Attorney Vik Monder is a skilled criminal defense attorney with vast experience serving the military community in San Diego. We have helped clients in the military enter military diversion programs and we may be able to help you too.
Call Monder Law Group today at (619)-405-0063 to go over the particulars of your case and discuss the different strategies available for each court system.
Contact San Diego Military Assault Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063
