## Facts

- Thomas Kellogg was homeless in San Diego, suffered from severe alcoholism and other mental and physical impairments, and asserted these conditions made it effectively impossible to avoid being intoxicated in public.
- On January 10, 2002, a San Diego police officer responding to a complaint about homeless persons camping near State Route 163 found Kellogg sitting in bushes off a freeway embankment.
- Kellogg appeared intoxicated and largely incoherent, rocking, talking to himself, and gesturing.
- He was arrested for misdemeanor public intoxication under California Penal Code § 647(f), posted cash bail, and was released.
- Because he had no stable address, he did not receive notice of a court date, failed to appear, and a warrant issued.
- Kellogg was later arrested on February 19 and February 27, 2002, also for public intoxication; prosecutors filed three § 647(f) counts, but the trial court proceeded on the January 10 incident as the basis for adjudication.
- The trial court denied Kellogg’s motion to dismiss on Eighth Amendment and California Constitution grounds, found him guilty on the January 10 count, and imposed a jail term with execution suspended on condition he complete an alcohol treatment program.

## Issues

1. Whether convicting and punishing an involuntarily homeless, chronic alcoholic under Penal Code § 647(f) for public intoxication constitutes cruel and unusual punishment under the Eighth Amendment.
2. Whether the conviction constitutes cruel or unusual punishment under article I, section 17 of the California Constitution, given Kellogg’s asserted inability to avoid public intoxication.
3. Whether § 647(f), as applied, impermissibly punishes “status” (alcoholism/homelessness) rather than culpable conduct under principles associated with Robinson v. California.

## Decision

- The California Court of Appeal affirmed the judgment.
- The court held that applying § 647(f) to Kellogg did not constitute cruel and/or unusual punishment under either the Eighth Amendment or the California Constitution.
- The court reasoned that § 647(f) punishes specified dangerous public conduct while intoxicated, not the status of being an alcoholic or homeless.
- A dissent would have found the conviction unconstitutional under the California Constitution as applied to these facts.

## Legal Principles

- Penal Code § 647(f) criminalizes public intoxication only when intoxication results in inability to care for one’s safety (or others’ safety) or interference with the free use of a public way.
- Eighth Amendment “status crime” limits (as in Robinson) do not bar punishment for conduct; a statute targeting risky conduct in public may be constitutionally applied to a person with alcoholism or homelessness.
- In as-applied proportionality review, a misdemeanor sanction oriented toward public safety and treatment may be upheld where the statute requires proof of conduct posing a safety risk, even if the defendant’s personal circumstances reduce practical choices.
- Courts may defer to legislative judgments that misdemeanor public-order offenses serve public welfare objectives, absent punishment that is constitutionally excessive or inhumane.

## Conclusion

The court upheld Kellogg’s § 647(f) conviction, concluding that the statute targets dangerous conduct while intoxicated in public rather than criminalizing homelessness or alcoholism, and that the misdemeanor punishment imposed did not amount to cruel and/or unusual punishment under federal or state constitutional standards.


People v. Kellogg, 119 Cal. App. 4th 593 (Cal. Ct. App. 2004)