People v. Kellogg

• Decision Date: 17 June 2004
• Docket Number: No. D042696.,D042696.
• Citation: 14 Cal.Rptr.3d 507,119 Cal.Rptr.4th 593
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas KELLOGG, Defendant and Appellant.

14 Cal.Rptr.3d 507

119 Cal.Rptr.4th 593

The PEOPLE, Plaintiff and Respondent, v. Thomas KELLOGG, Defendant and Appellant.

No. D042696.

Court of Appeal, Fourth District, Division One.

June 17, 2004.

Review Denied September 22, 2004.^*

Steven J. Carroll, Public Defender, and Laura Arnold, Deputy Public Defender, for Defendant and Appellant.

Casey Gwinn, City Attorney, Susan M. Heath, Assistant City Attorney, and David M. Stotland, Deputy City Attorney, for Plaintiff and Respondent.

HALLER, J.

Thomas Kellogg contends his public intoxication conviction constitutes constitutionally proscribed cruel and/or unusual punishment because his status as an involuntarily homeless, chronic alcoholic makes it impossible for him to avoid being intoxicated in public. We reject this contention. The public intoxication statute, Penal Code¹ section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way. The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk. Although criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg's position, the Legislature's policy choice to retain the misdemeanor offense of public intoxication to provide for the public welfare does not rise to the level of cruel and/or unusual punishment even as applied to a homeless, chronic alcoholic.

FACTUAL AND PROCEDURAL BACKGROUND

Arrest and Conviction

The facts of this case are essentially undisputed. On January 10, 2002, Officer Heidi Hawley, a member of the Homeless Outreach Team,² responded to a citizen's complaint of homeless persons camping under bridges and along State Route 163. She found Kellogg sitting on the ground in some bushes on the embankment off the freeway. Kellogg appeared inebriated and was largely incoherent. He was rocking back and forth, talking to himself and gesturing. Officer Hawley arrested Kellogg for public intoxication. He had $445 in his pocket from disability income.³

In February 2001, Kellogg had accepted an offer from the Homeless Outreach Team to take him to Mercy Hospital. However, on three other occasions when Officer Hawley had offered Kellogg assistance from the Homeless Outreach Team, he had refused.

After his arrest on January 10, 2002, Kellogg posted $104 cash bail and was released. Because he was homeless, he was not notified of his court date and he did not appear for his January 31 arraignment. A warrant for his arrest was issued on February 11, 2002; he was arrested again for public intoxication on February 19 and 27 and subsequently charged with three violations of section 647, subdivision (f).

After a pretrial discussion in chambers about Kellogg's physical and psychological problems, the trial court conditionally released Kellogg on his own recognizance and ordered that he be escorted to the Department of Veterans Affairs Hospital by Officer Hawley. He was not accepted for admission at the hospital and accordingly was returned to county jail.

Kellogg pleaded not guilty and filed a motion to dismiss the charges based on his constitutional right to be free of cruel and unusual punishment.

Evidence Presented at Motion to Dismiss Hearing

Psychologist Gregg Michel and Psychiatrist Terry Schwartz testified on behalf of Kellogg. These experts explained that Kellogg had a dual diagnosis. In addition to his severe alcohol dependence, which causes him to suffer withdrawal symptoms if he stops drinking, he suffers from dementia, long-term cognitive impairment, schizoid personality disorder, and symptoms of posttraumatic stress disorder. He has a history of seizure disorder and a closed head injury, and reported anxiety, depressive symptoms and chronic pain. He is estranged from his family. Physically, he has peripheral edema, gastritis, acute liver damage, and ulcerative colitis requiring him to wear a colostomy bag. To treat his various conditions and symptoms he has been prescribed Klonopin and Vicodin and may suffer from addiction to medication.

Dr. Michel opined that Kellogg was gravely disabled and incapable of providing for his basic needs, and that his degree of dysfunction was life-threatening. His mental deficits impeded his executive functioning (planning, making judgments) and memory. Dr. Michel described Kellogg as having "good immediate reality contact," struggling to express himself but lacking the ability to do so, and a "likeable person, who obviously was trying to cope with problems for which there weren't really any . . . adequate solutions, because . . . of [his] cognitive problems and emotional problems."

Drs. Michel and Schwartz opined that Kellogg's homelessness was not a matter of choice but a result of his gravely disabled mental condition. His chronic alcoholism and cognitive impairment made it nearly impossible for him to obtain and maintain an apartment without significant help and support. Dr. Michel stated Kellogg would not be a suitable candidate for out-patient treatment but required long-term in-patient treatment at a locked facility. Because Kellogg needed a program geared towards a person with dual conditions of substance dependence and mental disorder, he was not an appropriate candidate for a typical in-patient substance abuse program. Dr. Michel thought Kellogg would be eligible for a conservatorship because of his gravely disabled condition. However, he did not think this was a feasible solution in Kellogg's particular case as dual diagnosis magnified the complexity of a person's problems, presented difficulties in terms of the degree of long-term care required, and multiplied the need for community resources.

Dr. Schwartz questioned whether a long-term, locked residential treatment setting was a viable option as density conditions (often four patients in a room) and group participation requirements were incompatible with Kellogg's schizoid personality condition. Dr. Schwartz stated that Kellogg had been offered various forms of treatment and housing but had not made use of those resources; she posited that unless resources were offered in a different way, there would be no change in outcome. Dr. Schwartz explained that for a person with Kellogg's conditions, crowded homeless shelters can be psychologically disturbing and trigger posttraumatic stress or anxiety symptoms, causing the person to prefer to hide in a bush where minimal interactions with people would occur. Additionally, a homeless person such as Kellogg, particularly when intoxicated, might refuse offers of assistance from authorities because he has difficulty trusting people and fears his situation, although bad at present, will worsen.

In Dr. Michel's view, Kellogg's incarceration provided some limited benefit in that he obtained medication for seizures, did not have access to alcohol, received some treatment, and was more stable during incarceration than he was when homeless on the streets. However, such treatment was insufficient to be therapeutic, and medications prescribed for inmate management purposes can be highly addictive and might not be medically appropriate.

Dr. Schwartz opined that incarceration was not an effective form of treatment. Although incarceration provided a period of abstention from alcohol, it did not provide the necessary additional treatments, especially for individuals with mental disorders. Dr. Schwartz stated that being placed in certain structured environments could be counter-therapeutic for a chronic alcoholic, but acknowledged that incarceration, which resulted in short-term alcohol abstention, potentially could be beneficial.

Testifying for the prosecution, Physician James Dunford stated that at the jail facility, medical staff assess the arrestee's condition and provide treatment as needed, including vitamins for nutritional needs and medication to control alcohol withdrawal symptoms or other diseases such as hypertension, seizure disorders, and diabetes. Consistent with this protocol, on February 28, 2002, Kellogg was evaluated at intake by the jail nursing staff, who found him covered with feces and resisting efforts to assess his medical condition. On March 2, the jail medical staff delineated a treatment plan for Kellogg, which included assistance with his colostomy bag, ongoing treatment of his alcohol withdrawal, medication to address his reports of pain, evaluation of the existence of and appropriate medication for seizure disorder, and support to overcome the conditions that cause him to become disheveled and foul-smelling. On March 7 the medical staff assessed that Kellogg appeared well and in no distress and no longer had alcohol withdrawal as his primary complaint. His complaints referred to abdominal and muscular pain and needs related to his colostomy bag. Dr. Dunford opined that between March 2 and 7, Kellogg's condition had improved because his seizure medicine was restarted, his alcohol withdrawal was treated, his vital signs were stable, his colostomy bag was clean and intact, his overall cleanliness was restored, and he was interacting with people in a normal way.

Trial Court's Ruling and Subsequent Events

After the presentation of evidence, the trial court found that Kellogg suffers from both chronic alcohol dependence and a mental disorder and was homeless at the time of his arrests. Further, his alcohol dependence is both physical and psychological and causes him to be unable to stop drinking or to engage in rational choice-making. Finding that before his arrest Kellogg was offered assistance on at least three occasions and that his medical condition improved while in custody, the court denied the motion to dismiss the charges.

On April 2, 2002, the court found Kellogg guilty of one charge of violating section 647, subdivision (f)...