California Health & Safety Code § 11363 HS makes it illegal to cultivate (that is, to plant, harvest, dry or process) peyote or other mescaline-containing cacti. Doping so is a wobbler offense that can be charged as either a misdemeanor or a felony.
If charged as a misdemeanor, the crime is punishable by:
- imprisonment in the county jail for up to one year; and/or,
- a maximum fine of $1,000.
If charged as a felony, the offense is punishable by:
- imprisonment in the California state prison for up to three years; and/or,
- a maximum fine of $10,000.
The language of the code section reads as follows:
11363. Every person who plants, cultivates, harvests, dries, or processes any plant of the genus Lophophora, also known as peyote, or any part thereof shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.
Legal defenses are available to those accused under PC 11363. One such defense is “mistake of fact.”1
- 1. What is prohibited?
- 2. What are the penalties?
- 3. Are there legal defenses?
- 4. Is peyote protected as freedom of religion?
- 5. What is peyote?
1. What is prohibited?
HSC 11363 makes it a crime for a person to knowingly:
- plant,
- cultivate,
- harvest,
- dry, or
- process
any mescaline-containing cacti of the genus Lophophora williamsii, or peyote (a Schedule I controlled substance).
Peyote is an important component of many Native American rituals. Nevertheless, California still criminalizes cultivating peyote and other mescaline-containing cacti for any purpose – even for religious ceremonies.
The only places people can lawfully grow peyote within the borders of California are on federal reservations. This is because tribal lands are not governed by California law but rather federal law, which permits peyote cultivation for religious purposes in some circumstances.
Native Americans could be prosecuted for cultivating peyote if they grow it outside of a federal reservation.
California law prohibits possessing or planting peyote or other mescaline-containing cacti.
Please note that simply possessing this psychedelic drug is punishable under California’s possession of a controlled substance law. Cultivating peyote under HSC 11363 is a more serious crime than simple possession.2
2. What are the penalties?
A violation of HSC 11363 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony based upon:
- the amount of peyote;
- the facts of the case; and,
- the criminal history of the defendant.
If charged as a misdemeanor, the crime is punishable by:
- imprisonment in the county jail for up to one year; and/or,
- a maximum fine of $1,000.
If charged as a felony, the offense is punishable by:
- imprisonment in the California state prison for up to three years; and/or,
- a maximum fine of $10,000.3
3. Are there legal defenses?
Legal defenses are available to a person charged with cultivating peyote or other mescaline-containing cacti in California. A good defense can often get a charge reduced or even dismissed.
One common defense for an HSC 11363 accusation is known as “mistake of fact.” Under this defense, a defendant asserts that while he may have been cultivating peyote, he did not know that the plant he was growing was actually peyote.
4. Is peyote protected as freedom of religion?
Laws against cultivating the psychoactive drug peyote or other mescaline-containing cacti are problematic because of the right to religious freedom outlined in the U.S. and California constitutions.
This is because members of the Native American Church (also known as peyotism) consume peyote as part of their religious ceremonies. Many other Native American Indian/indigenous people also use peyote plants, a spineless cactus, for religious use.
The California Supreme Court has held that a person may not be convicted of simple possession of peyote for possessing and using peyote as part of a legitimate religious ritual.4 Federal law also recognizes a religious exemption for simple possession.5
However, courts have not considered whether or not the same reasoning applies to the cultivation of peyote. In other words, if you plant or harvest peyote for religious purposes, you may still be found guilty of cultivating peyote under Health & Safety Code 11363.6
Violating 11363 HS is a wobbler.
5. What is peyote?
The peyote cactus (which is spineless and produces phenethylamine alkaloids) originally comes from northern Mexico and largely used in South Texas, Arizona, New Mexico, and Oregon.
Peyote contains the hallucinogen mescaline (3, 4, 5-trimethoxyphenethylamine). For millennia, native tribes in the southwestern U.S. and Mexico have used peyote during religious rites.
The crown of the cactus is composed of buttons shaped like discs. After being severed from the peyote roots, these buttons are typically chewed. Or they can be steeped in liquid, which can then be drunk.
To experience hallucinogenic effects, a user must ingest .3 to .5 grams. The effects persist for about 12 hours.
Mescaline can be created synthetically. One variation called “DOM” (4-Methyl-2,5-dimethoxyamphetamine ) was popular in San Francisco in the ’60s and commonly referred to STP, short for serenity, tranquility, and peace.
Medical research is showing the potentially positive effects on mental health of using
- peyote,
- cannabis,
- psilocybin, and
- LSD.7
Arrested in California? We serve clients throughout the state including Los Angeles, Santa Cruz, Oakland, San Pedro, and more.
See our related articles: 11379.6 HS – Manufacturing a Controlled Substance and 11358 HS – Is cultivation of marijuana still a crime in California?
Legal References
- HSC 11363.
- Same.
- Same.
- People v. Woody (Cal. Aug. 24, 1964), 61 Cal. 2d 716. See also People v. Peck (1996) .
- 42 USCS § 1996a.
- See note 1.
- See Ricardo Jorge Dinis-Oliveira, Carolina Lança Pereira, Diana Dias da Silva, Pharmacokinetic and Pharmacodynamic Aspects of Peyote and Mescaline: Clinical and Forensic Repercussions, Curr Mol Pharmacol. (2019). Peyote, WebMD. Also see Ben Adlin, Santa Cruz Removes Peyote And Other Mescaline-Containing Cacti From Psychedelics Decriminalization Law, Schedule 6 Foundation (October 2, 2021).