BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 170 (Gaines) - Unmanned aircraft systems:  correctional  
          facilities
          
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          |Version: April 22, 2015         |Policy Vote: PUB. S. 6 - 0      |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: May 28, 2015      |Consultant: Jolie Onodera       |
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          SUSPENSE FILE. AS AMENDED.

          

          Bill Summary:  SB 170 would do the following: 
           Provide that the use of an unmanned aircraft system (drone),  
            as defined, to commit any of enumerated felony violations for  
            bringing contraband into a prison or jail shall be considered  
            a factor in aggravation in sentencing. 
           Provide that a person who uses a drone to commit an infraction  
            or misdemeanor violation for bringing contraband into a prison  
            jail be subject to a doubled fine, as specified.
           Provide that intentionally operating a drone below the  
            navigable airspace overlying a state prison or county jail  
            without permission, subject to specified exceptions, is a  
            misdemeanor.


          Fiscal Impact (as approved May 28,  
          2015):  Non-reimbursable local costs for enforcement and  
          incarceration, offset to a degree by fine revenue for the new  
          misdemeanor. 








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          Background:  Existing state law generally prohibits a person from bringing,  
          possessing, distributing, or selling certain devices and  
          substances, including but not limited to alcoholic beverages,  
          controlled substances, and deadly weapons, in state prison or a  
          jail. Existing law also prohibits unauthorized communication  
          with inmates in state prison or a jail. Existing law provides  
          for a range of criminal penalties for violations of these  
          provisions, with felony violations generally punishable by two,  
          three, or four years in county jail or state prison, as  
          specified.
          This bill seeks to place enhanced penalties for violations of  
          any of the aforementioned provisions that are committed with the  
          use of a drone. 


          Proposed Law:  This bill would do the following:
                 Provide that the use of a drone to commit any of  
               enumerated felony violations of bringing contraband into a  
               prison or jail shall be considered a factor in aggravation  
               in sentencing. 
                 Provide that a person who uses a drone to commit an  
               infraction or misdemeanor violation of bringing contraband  
               into a prison jail be subject to a doubled fine, as  
               specified.
                 Provide that intentionally operating a drone below the  
               navigable airspace, as defined in federal law, overlying a  
               state prison or county jail without consent, subject to  
               specified exceptions for state prison or county jail  
               personnel, as specified, is a misdemeanor.


          Related  
          Legislation:  SB 271 (Gaines) 2015 would make it an infraction  
          to operate an unmanned aircraft system on or above the grounds  
          of a public school during school hours, as defined, and without  
          the written permission of a specified school official. 
          Prior Legislation:  SB 15 (Padilla) 2014 would have clarified  
          the circumstances in which a law enforcement agency would be  
          required to obtain a warrant to use a drone and that a drone  
          could not be used in a manner to invade a person's privacy. This  
          bill failed in the Assembly Committee on Public Safety. 










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          AB 1327 (Gorell) 2014 would have prohibited law enforcement from  
          using a drone without obtaining a search warrant. This bill was  
          vetoed by the Governor with the following message:


          I am returning Assembly Bill 1327 without my signature. This  
          bill prohibits law enforcement from using a drone without  
          obtaining a search warrant, except in limited circumstances.  
          There are undoubtedly circumstances where a warrant is  
          appropriate. The bill's exceptions, however, appear to be too  
          narrow and could impose requirements beyond what is required by  
          either the 4th Amendment or the privacy provisions in the  
          California Constitution. 




          Staff  
          Comments:  By requiring that the use of a drone be considered a  
          factor in aggravation in sentencing for felony violations  
          involving bringing contraband into a prison or jail, this bill  
          could potentially result in a minor increase in costs to state  
          and local agencies for longer sentences served in state prison  
          and county jail. To the extent the use of a drone involving  
          contraband-related offenses could potentially be considered a  
          factor in aggravation in sentencing under existing law, the  
          potential fiscal impact is expected to be minor.
          The felonies relevant to this measure are generally punishable  
          by imprisonment pursuant to PC 1170(h) for two, three, or four  
          years. DOJ statistics indicate on average over 2,400 convictions  
          annually for contraband-related felonies in state prison and  
          county jail over the last three years. CDCR data indicates  
          nearly 300 admissions to state prison in 2014 for  
          contraband-related felonies. To the extent two cases are  
          impacted due to the provisions of this bill would exceed $50,000  
          in any one year.

          Staff notes that bringing contraband into a jail or prison is a  
          crime under existing law. Pursuant to Proposition 30 (2012),  
          legislation enacted after September 30, 2012, that has an  
          overall effect of increasing the costs already borne by a local  
          agency for programs or levels of service mandated by the 2011  
          Realignment Legislation apply to local agencies only to the  
          extent that the state provides annual funding for the cost  








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          increase. Although Proposition 30 specifies that legislation  
          defining a new crime or changing the definition of an existing  
          crime is not subject to this provision, changing the penalty for  
          a crime is not specifically exempted and could potentially  
          require a subvention of funds from the state. While it is not  
          known with certainty, to the extent the added factor in  
          aggravation to be considered in these cases is determined to  
          change the penalty for this crime, any increase in costs to  
          local agencies attributable to provisions of this legislation  
          could potentially require annual funding from the State.

          The Three-Judge Court has ordered the State to reduce its prison  
          population to 137.5 percent of the prison system's design  
          capacity by February 28, 2016. Pursuant to its February 10, 2014  
          order, the Court has ordered the CDCR to implement several  
          population reduction measures, prohibited an increase in the  
          population of inmates housed in out-of-state facilities, and  
          indicated the Court will maintain jurisdiction over the State  
          for as long as necessary to ensure that the State's compliance  
          with the 137.5 percent final benchmark is durable, and that such  
          durability is firmly established. Any future increases to the  
          State's prison population challenge the ability of the State to  
          reach and maintain such a "durable solution," and could require  
          the State to pursue one of several options, including  
          contracting-out for additional bed space or releasing current  
          inmates early onto parole.

          Committee amendments (as adopted May 28, 2015):  Delete Section  
          1 of the bill, which provided for an added factor in aggravation  
          for felony violations of bringing contraband into a prison  
          through the use of a drone and provided for doubled fines.


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