Amended in Assembly April 4, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2320

Introduced by Assembly Members Calderon and Low

February 18, 2016

An act to amend Sections 273.6, 402, 646.9, and 4573.5 of, and to add Section 290.97 to, the Penal Code, begin insert and to add Section 21401.5 to the Public Utilities Code, end insert relating to unmanned aircraft systems.

LEGISLATIVE COUNSEL’S DIGEST

AB 2320, as amended, Calderon. Unmanned aircraft systems.

(1) Existing federal law, the Federal Aviation Administration Modernization and Reform Act of 2012, provides for the integration of civil and public unmanned aircraft systems, commonly known as drones, into the national airspace system.

Existing state law generally authorizes a court to issue an order for the protection of certain persons, including, among others, the victims of domestic violence, elder and dependent adult abuse, workplace violence, and civil harassment. Under existing law, an intentional and knowing violation of those types of protective orders is a misdemeanor. If the violation results in physical injury, or occurs within specified time periods of a previous violation, existing law imposes additional penalties. Existing law also makes the crime of stalking another person, as defined, punishable as a misdemeanor or felony. Existing law makes it a felony to commit that offense when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior.

This bill would specifically prohibit a person who is prohibited from coming within a specified distance of another person, from operating an unmanned aircraft system in a way that causes an unmanned aircraft, as those terms are defined, to fly within the prohibited distance of the other person or from capturing images of the other person by using an unmanned aircraft system. By creating a new crime, the bill would impose a state-mandated local program.

(2) Existing law requires a person who has been convicted of specified sex offenses to register with local law enforcement authorities as a sex offender.

This bill would prohibit a person required to register pursuant to those provisions for an offense committed on or after January 1, 2017, from operating an unmanned aircraft system. Because a violation of that provision would be a crime, the bill would impose a state-mandated local program.

(3) Existing law provides that every person who goes to the scene of an emergency or stops at the scene of an emergency for the purpose of viewing the scene or the activities of police officers, firefighters, emergency medical or other emergency personnel, or military personnel coping with the emergency in the course of their duties during the time it is necessary for emergency vehicles or those personnel to be at the scene of the emergency or to be moving to or from the scene of the emergency for the purpose of protecting lives or property, unless it is part of the duties of that person’s employment to view that scene or activities, and thereby impedes police officers, firefighters, emergency medical or other emergency personnel, or military personnel in the performance of their duties in coping with the emergency, is guilty of a misdemeanor.

This bill would include, for purposes of these provisions, the operation or use of an unmanned aircraft system in the definition of a person. By expanding the scope of a crime, this bill would impose a state-mandated local program.

(4) Existing law makes a person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, guilty of the crime of stalking, punishable as a misdemeanor or a felony.

This bill would specifically include, for purposes of these provisions, the operation or use of an unmanned aircraft system in the definition of a person.

(5) Existing law makes a person who knowingly brings into certain correctional facilities or certain other places where prisoners or inmates of those facilities are located, any alcoholic beverage, any drugs, other than controlled substances, in any manner, shape, form, dispenser, or container, or any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming any drug other than controlled substances, without having authority so to do by the rules of the correctional facility, guilty of a felony.

This bill would specifically include, for purposes of these provisions, the operation or use of an unmanned aircraft system in the definition of a person. begin insert

(6) The State Aeronautics Act governs various matters relative to aviation in the state, including, among other things, fostering and promoting safety in aeronautics and establishing only those regulations that are essential and clearly within the scope of the authority granted to the Department of Transportation by the Legislature, in order that persons may engage in every phase of aeronautics with the least possible restriction consistent with the safety and the rights of others. A violation of the act is a crime punishable by a fine of not more than $1,000 or by imprisonment of not more than 6 months, or both.

end insert begin insert

This bill would specify that, except as expressly authorized by statute, the authority to regulate the ownership or operation of unmanned aircraft is vested solely in the state. The bill would, except as expressly authorized by statute, prohibit a city, a county, a city and county, or another local government entity from enacting an ordinance or resolution that regulates the ownership or operation of unmanned aircraft and from otherwise engaging in the regulation of the ownership or operation of unmanned aircraft.

end insert

begin delete

(6)

end delete

begin insert (7) end insert  The bill would make related legislative findings and declarations and would include a statement of legislative intent.

begin delete

(7)

end delete

begin insert (8) end insert  The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares all of the
following:

(1) The Federal Aviation Act of 1958 established the Federal
Aviation Administration (FAA) and made the FAA responsible
for the control and use of navigable airspace within the United
States.

(2) The FAA regulates unmanned aircraft systems, also known
as drones.

(3) Public entities, including law enforcement agencies,
firefighter units, border and port patrols, disaster relief workers,
search and rescue personnel, qualifying public universities, military
training facilities, and other government operational mission units,
may operate unmanned aircraft systems by applying for a
Certificate of Waiver or Authorization from the FAA.

(4) The FAA is in the process of developing rules that are
intended to safely integrate small unmanned aircraft systems into
the national airspace system and that, following issuance of a
begin delete Notice of Proposed Rulemaking end delete begin insert notice of proposed rulemaking end insert
and public comment period, are expected to be released in 2016
or 2017.

(5) The small unmanned aircraft system rules are anticipated to
be similar to the current hobbyist rules for operations of model
unmanned aircraft systems that limit the area of operation to
low-risk and controlled environments and the size of the system
to less than 55 pounds.

(6) While the FAA is developing the small unmanned aircraft
system rules, private commercial entities on a
company-by-company basis may apply to the FAA for a Section
333 exemption from the current rules for manned aircraft by
showing that the entity operates with at least an equivalent level
of safety. The FAA has granted over 1,900 Section 333 exemptions
to date for the commercial operation of unmanned aircraft systems
in the photography, film, utilities, energy, infrastructure, real estate,
agricultural, and construction industries.

(7) In addition to being used in military training and operations
and public safety areas, unmanned aircraft systems may be used
in a wide variety of activities, including oil and natural gas pipeline
inspection, transportation, natural disaster aid, search and rescue,
precision agriculture, natural resource and environmental
protection, bridge and infrastructure inspection, public utility
support, construction and building inspection, surveying, golf
course marketing, wind turbine inspection, realtor marketing
photography, and prison monitoring.

(8) While the public has expressed concerns with the operation
of unmanned aircraft systems, including privacy and safety issues,
there are benefits that may be realized by the state, including the
state’s various industry sectors, from conducting research on
unmanned aircraft systems in the state and developing,
manufacturing, and operating unmanned aircraft systems in the
state.

(9) The FAA has warned that a “patchwork quilt” of inconsistent
regulation raises substantial safety concerns, impedes innovation,
and makes it virtually impossible for end-users to understand the
rules for operating unmanned aircraft systems.

(b) (1) It is the intent of the Legislature that a person be
prohibited from, without the owner or business operator’s written
consent, operating or using an unmanned aircraft system to
knowingly and intentionally fly within 250 feet of the perimeter
of any critical infrastructure facility for the purpose of conducting
surveillance of the facility, gathering evidence or collecting
information about the facility, or photographically or electronically
recording critical infrastructure data.

(2) For purposes of this subdivision, “critical infrastructure
facility” means an airport, an electrical power generation system,
a petroleum refinery, a manufacturing facility that utilizes any
combustible chemicals either in storage or in the process of
manufacturing, a chemical or rubber manufacturing facility, or a
petroleum or chemical storage facility.

SEC. 2.  

Section 273.6 of the Penal Code is amended to read:

273.6.  

(a) Any intentional and knowing violation of a
protective order, as defined in Section 6218 of the Family Code,
or of an order issued pursuant to Section 527.6, 527.8, or 527.85
of the Code of Civil Procedure, or Section 15657.03 of the Welfare
and Institutions Code, is a misdemeanor punishable by a fine of
not more than one thousand dollars ($1,000), or by imprisonment
in a county jail for not more than one year, or by both that fine and
imprisonment.

(b) A violation of subdivision (a) that results in physical injury,
shall be punished by a fine of not more than two thousand dollars
($2,000), or by imprisonment in a county jail for not less than 30
days nor more than one year, or by both that fine and imprisonment.
However, if the person is imprisoned in a county jail for at least
48 hours, the court may, in the interest of justice and for reasons
stated on the record, reduce or eliminate the 30-day minimum
imprisonment required by this subdivision. In determining whether
to reduce or eliminate the minimum imprisonment pursuant to this
subdivision, the court shall consider the seriousness of the facts
before the court, whether there are additional allegations of a
violation of the order during the pendency of the case before the
court, the probability of future violations, the safety of the victim,
and whether the defendant has successfully completed or is making
progress with counseling.

(c) Subdivisions (a) and (b) shall apply to the following court
orders:

(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.

(2) An order excluding one party from the family dwelling or
from the dwelling of the other.

(3) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the order described
in subdivision (a).

(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the
Family Code.

(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or “a credible threat” of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or pursuant
to subdivision (h) of Section 1170.

(e) A subsequent conviction for a violation of an order described
in subdivision (a) for an act occurring within one year of a prior
conviction for a violation of an order described in subdivision (a)
that results in physical injury to a victim, shall be punished by a
fine of not more than two thousand dollars ($2,000), or by
imprisonment in a county jail for not less than six months nor more
than one year, by both that fine and imprisonment, or by
imprisonment pursuant to subdivision (h) of Section 1170.
However, if the person is imprisoned in a county jail for at least
30 days, the court may, in the interest of justice and for reasons
stated in the record, reduce or eliminate the six-month minimum
imprisonment required by this subdivision. In determining whether
to reduce or eliminate the minimum imprisonment pursuant to this
subdivision, the court shall consider the seriousness of the facts
before the court, whether there are additional allegations of a
violation of the order during the pendency of the case before the
court, the probability of future violations, the safety of the victim,
and whether the defendant has successfully completed or is making
progress with counseling.

(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).

(g) (1) A person who owns, possesses, purchases, or receives
a firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6, 527.8,
or 527.85 of the Code of Civil Procedure, or Section 15657.03 of
the Welfare and Institutions Code, shall be punished under Section
29825.

(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h)
of Section 6389 of the Family Code.

(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose probation
consistent with Section 1203.097, and the conditions of probation
may include, in lieu of a fine, one or both of the following
requirements:

(1) That the defendant make payments to a battered women’s
shelter or to a shelter for abused elder persons or dependent adults,
up to a maximum of five thousand dollars ($5,000), pursuant to
Section 1203.097.

(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds
are the direct result of the defendant’s offense.

(i) For any order to pay a fine, make payments to a battered
women’s shelter, or pay restitution as a condition of probation
under subdivision (e), the court shall make a determination of the
defendant’s ability to pay. An order to make payments to a battered
women’s shelter shall not be made if it would impair the ability
of the defendant to pay direct restitution to the victim or
court-ordered child support. If the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be
used to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, as operative
on or before August 2, 1995, or Section 1202.4, or to a shelter for
costs with regard to the injured spouse and dependents, required
by this section, until all separate property of the offending spouse
is exhausted.

(j) (1) This subdivision applies to a person who is both of the
following:

(A) The person is subject to a protective order, as defined in
Section 6218 of the Family Code, or a protective order issued
pursuant to this code, Section 527.6, 527.8, or 527.85 of the Code
of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code.

(B) The person is prohibited by the protective order described
in subparagraph (A) from coming within a specified distance of
another person.

(2) A person described in paragraph (1) shall not do either of
the following:

(A) Operate an unmanned aircraft system in a way that causes
an unmanned aircraft to fly within the prohibited distance of the
other person.

(B) Capture images of the other person by using an unmanned
aircraft system.

(3) A violation of paragraph (2) is a violation of the protective
order.

(4) For the purposes of this subdivision, the following definitions
apply:

(A) “Unmanned aircraft” means an aircraft that is operated
without the possibility of direct human intervention from within
or on the aircraft.

(B) “Unmanned aircraft system” means an unmanned aircraft
and associated elements, including, but not limited to,
communication links and the components that control the
unmanned aircraft that are required for the pilot in command to
operate safely and efficiently in the national airspace system.

SEC. 3.  

Section 290.97 is added to the Penal Code, to read:

290.97.  

(a) A person required to register pursuant to this
chapter for an offense committed on or after January 1, 2017, shall
not operate an unmanned aircraft system.

(b) For purposes of this section, both of the following definitions
apply:

(1) “Unmanned aircraft” means an aircraft that is operated
without the possibility of direct human intervention from within
or on the aircraft.

(2) “Unmanned aircraft system” means an unmanned aircraft
and associated elements, including, but not limited to,
communication links and the components that control the
unmanned aircraft that are required for the pilot in command to
operate safely and efficiently in the national airspace system.

SEC. 4.  

Section 402 of the Penal Code is amended to read:

402.  

(a) (1) A person who goes to the scene of an emergency,
or stops at the scene of an emergency, for the purpose of viewing
the scene or the activities of police officers, firefighters, emergency
medical, or other emergency personnel, or military personnel
coping with the emergency in the course of their duties during the
time it is necessary for emergency vehicles or those personnel to
be at the scene of the emergency or to be moving to or from the
scene of the emergency for the purpose of protecting lives or
property, unless it is part of the duties of that person’s employment
to view that scene or activities, and thereby impedes police officers,
firefighters, emergency medical, or other emergency personnel or
military personnel, in the performance of their duties in coping
with the emergency, is guilty of a misdemeanor.

(2) For purposes of this subdivision, a person includes a person
who operates or uses an unmanned aircraft system. For purposes
of this paragraph, both of the following definitions apply:

(A) “Unmanned aircraft” means an aircraft that is operated
without the possibility of direct human intervention from within
or on the aircraft.

(B) “Unmanned aircraft system” means an unmanned aircraft
and associated elements, including, but not limited to,
communication links and the components that control the
unmanned aircraft that are required for the pilot in command to
operate safely and efficiently in the national airspace system.

(b) A person who knowingly resists or interferes with the lawful
efforts of a lifeguard in the discharge or attempted discharge of an
official duty in an emergency situation, when the person knows
or reasonably should know that the lifeguard is engaged in the
performance of his or her official duty, is guilty of a misdemeanor.

(c) For the purposes of this section, an emergency includes a
condition or situation involving injury to persons, damage to
property, or peril to the safety of persons or property, which results
from a fire, an explosion, an airplane crash, flooding, windstorm
damage, a railroad accident, a traffic accident, a power plant
accident, a toxic chemical or biological spill, or any other natural
or human-caused event.

SEC. 5.  

Section 646.9 of the Penal Code is amended to read:

646.9.  

(a) (1) A person who willfully, maliciously, and
repeatedly follows or willfully and maliciously harasses another
person and who makes a credible threat with the intent to place
that person in reasonable fear for his or her safety, or the safety of
his or her immediate family is guilty of the crime of stalking,
punishable by imprisonment in a county jail for not more than one
year, or by a fine of not more than one thousand dollars ($1,000),
or by both that fine and imprisonment, or by imprisonment in the
state prison.

(2) For purposes of this subdivision, a person includes a person
who operates or uses an unmanned aircraft system. For purposes
of this paragraph, both of the following definitions apply:

(A) “Unmanned aircraft” means an aircraft that is operated
without the possibility of direct human intervention from within
or on the aircraft.

(B) “Unmanned aircraft system” means an unmanned aircraft
and associated elements, including, but not limited to,
communication links and the components that control the
unmanned aircraft that are required for the pilot in command to
operate safely and efficiently in the national airspace system.

(b) Any person who violates subdivision (a) when there is a
temporary restraining order, injunction, or any other court order
in effect prohibiting the behavior described in subdivision (a)
against the same party, shall be punished by imprisonment in the
state prison for two, three, or four years.

(c) (1) Every person who, after having been convicted of a
felony under Section 273.5, 273.6, or 422, commits a violation of
subdivision (a) shall be punished by imprisonment in a county jail
for not more than one year, or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment,
or by imprisonment in the state prison for two, three, or five years.

(2) Every person who, after having been convicted of a felony
under subdivision (a), commits a violation of this section shall be
punished by imprisonment in the state prison for two, three, or
five years.

(d) In addition to the penalties provided in this section, the
sentencing court may order a person convicted of a felony under
this section to register as a sex offender pursuant to Section
290.006.

(e) For the purposes of this section, “harasses” means engages
in a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, torments, or terrorizes the
person, and that serves no legitimate purpose.

(f) For the purposes of this section, “course of conduct” means
two or more acts occurring over a period of time, however short,
evidencing a continuity of purpose. Constitutionally protected
activity is not included within the meaning of “course of conduct.”

(g) For the purposes of this section, “credible threat” means a
verbal or written threat, including that performed through the use
of an electronic communication device, or a threat implied by a
pattern of conduct or a combination of verbal, written, or
electronically communicated statements and conduct, made with
the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her
family, and made with the apparent ability to carry out the threat
so as to cause the person who is the target of the threat to
reasonably fear for his or her safety or the safety of his or her
family. It is not necessary to prove that the defendant had the intent
to actually carry out the threat. The present incarceration of a
person making the threat shall not be a bar to prosecution under
this section. Constitutionally protected activity is not included
within the meaning of “credible threat.”

(h) For purposes of this section, the term “electronic
communication device” includes, but is not limited to, telephones,
cellular phones, computers, video recorders, fax machines, or
pagers. “Electronic communication” has the same meaning as the
term defined in Subsection 12 of Section 2510 of Title 18 of the
United States Code.

(i) This section shall not apply to conduct that occurs during
labor picketing.

(j) If probation is granted, or the execution or imposition of a
sentence is suspended, for any person convicted under this section,
it shall be a condition of probation that the person participate in
counseling, as designated by the court. However, the court, upon
a showing of good cause, may find that the counseling requirement
shall not be imposed.

(k) (1) The sentencing court also shall consider issuing an order
restraining the defendant from any contact with the victim, that
may be valid for up to 10 years, as determined by the court. It is
the intent of the Legislature that the length of any restraining order
be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and
his or her immediate family.

(2) This protective order may be issued by the court whether
the defendant is sentenced to state prison, county jail, or if
imposition of sentence is suspended and the defendant is placed
on probation.

(l) For purposes of this section, “immediate family” means any
spouse, parent, child, any person related by consanguinity or
affinity within the second degree, or any other person who regularly
resides in the household, or who, within the prior six months,
regularly resided in the household.

(m) The court shall consider whether the defendant would
benefit from treatment pursuant to Section 2684. If it is determined
to be appropriate, the court shall recommend that the Department
of Corrections and Rehabilitation make a certification as provided
in Section 2684. Upon the certification, the defendant shall be
evaluated and transferred to the appropriate hospital for treatment
pursuant to Section 2684.

SEC. 6.  

Section 4573.5 of the Penal Code is amended to read:

4573.5.  

(a) (1) A person who knowingly brings into any state
prison or other institution under the jurisdiction of the Department
of Corrections, or into any prison camp, prison farm, or any other
place where prisoners or inmates of these institutions are located
under the custody of prison or institution officials, officers, or
employees, or into any county, city and county, or city jail, road
camp, farm or any other institution or place where prisoners or
inmates are being held under the custody of any sheriff, chief of
police, peace officer, probation officer, or employees, or within
the grounds belonging to any institution or place, any alcoholic
beverage, any drugs, other than controlled substances, in any
manner, shape, form, dispenser, or container, or any device,
contrivance, instrument, or paraphernalia intended to be used for
unlawfully injecting or consuming any drug other than controlled
substances, without having authority so to do by the rules of the
Department of Corrections, the rules of the prison, institution,
camp, farm, place, or jail, or by the specific authorization of the
warden, superintendent, jailer, or other person in charge of the
prison, jail, institution, camp, farm, or place, is guilty of a felony.

(2) For purposes of this subdivision, a person includes a person
who operates or uses an unmanned aircraft system. For purposes
of this paragraph, both of the following definitions apply:

(A) “Unmanned aircraft” means an aircraft that is operated
without the possibility of direct human intervention from within
or on the aircraft.

(B) “Unmanned aircraft system” means an unmanned aircraft
and associated elements, including, but not limited to,
communication links and the components that control the
unmanned aircraft that are required for the pilot in command to
operate safely and efficiently in the national airspace system.

(b) The prohibitions and sanctions addressed in this section shall
be clearly and prominently posted outside of, and at the entrance
to, the grounds of all detention facilities under the jurisdiction of,
or operated by, the state or any city, county, or city and county.

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 21401.5 is added to the end insert begin insert Public Utilities Code end insert begin insert ,
to read: end insert

begin insert

begin insert 21401.5. end insert   

(a) Except as expressly authorized by statute, the
authority to regulate the ownership or operation of unmanned
aircraft is vested solely in the state.

(b) Except as expressly authorized by statute, a city, a county,
a city and county, or another local government entity shall not do
either of the following:

(1) Enact an ordinance or resolution that regulates the
ownership or operation of unmanned aircraft.

(2) Otherwise engage in the regulation of the ownership or
operation of unmanned aircraft.

(c) For purposes of this section, “unmanned aircraft” means
an aircraft that is operated without the possibility of direct human
intervention from within or on the aircraft.

end insert

begin delete SEC. 7. end delete

begin insert SEC. 8. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.