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Cultivating Peyote

Cultivating Peyote in California - Health & Safety Code 11363 HS

California Health & Safety Code 11363 HS is the statute that makes it a crime to cultivate peyote or other mescaline-containing cacti, which means to plant, harvest, dry, or process it. Violating this law is a wobbler that can be filed as a misdemeanor or felony crime.

Cultivating Peyote in California - Health & Safety Code 11363 HSC
HS 11363 makes it a crime to possess, cultivate, plant, harvest, dry, or process peyote.

Despite the public's evolving perspective on recreational drug use and California's acceptance of marijuana (cannabis) for recreational use, peyote is still considered a controlled substance both at the state and federal levels. 

HS 11363 says, “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.”

Thus, with certain exceptions, it violates state law to cultivate peyote and other cacti species containing mescaline (Health & Safety Code 11363 HSC), which is considered a Schedule I controlled substance.

Notably, possession of this psychedelic drug is punishable under California Health and Safety Code 11350(a) HS, which is the possession of a controlled substance law. Cultivating peyote under HS 11363 is a more serious crime than simple possession.

If you are convicted of cultivating peyote, depending on the circumstances, you could face up to three years in state prison.

What Is Peyote?

Peyote, scientifically known as Lophophora williamsii, is a small, spineless cactus native to the southwestern United States and Mexico. It's well-known for its psychoactive properties due to the presence of mescaline, a powerful hallucinogen. 

The crown of the cactus has buttons that are shaped like discs. These buttons are commonly chewed once separated from the peyote roots, but the liquid can also be drunk. They can cause hallucinogenic effects lasting up to 12 hours.
Indigenous cultures have used the plant in religious rituals and medicinal practices for centuries. However, because of its psychoactive effects, peyote is classified as a Schedule I controlled substance under federal law in the United States, making it illegal to cultivate, possess, or distribute it. 

HS 11363 - Explained

As noted, California's Health & Safety Code 11363 HS makes it illegal to plant, cultivate, harvest, or process peyote or any related cactus species containing mescaline within California.  To convict you of this crime, prosecutors need only to prove the following elements:

  • You engaged in the planting, cultivation, harvesting, or processing of peyote (or related species); and
  • You knew the plant was peyote.

Exception to the Rule

While HSC 11363 does not list any exceptions, federal law permits the cultivation of peyote on Native American reservation lands where the peyote plays a role in the rituals of the Native Americans. These lands don't fall within the jurisdiction of California law, so HSC 11363 is not enforceable on reservation land.

The Question of Religious Freedom

One notable complication in the enforcement of HSC 11363, and other laws concerning the possession and use of peyote, is that peyote is frequently used as part of the religious practices of the Native American Church (aka, "peyotism"). 

Federal law explicitly protects the use and distribution of peyote by Native Americans for "bona fide religious purposes." 

42 U.S.C. 1996a says, “The Congress finds and declares that—

(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life and significant in perpetuating Indian tribes and cultures.

Federal Indian Country

(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation.

(3) while at least 28 States have enacted laws that are like, or are in conformance with, the Federal regulation that protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity have created hardship for Indian people who participate in such religious ceremonies.

(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies and raised uncertainty about whether this religious practice would be protected under the compelling State interest standard; and

(5) the lack of adequate and precise legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures and increase the risk that they will be exposed to discriminatory treatment.

The California Supreme Court has further ruled that no one (Native or otherwise) can be prosecuted for possession of peyote if it can be shown it was for legitimate religious purposes.

However, while this provides some legal protection for members of the Native American Church who consume peyote as part of their religious practices, it does not extend to the cultivation or distribution of the plant outside of reservation lands. Additionally, individuals must still prove that their use was for legitimate religious purposes. 

What Are Some Examples?

Example 1: John, a California resident without religious affiliation, cultivates peyote in his backyard purely out of personal interest in the plant. If discovered by law enforcement through lawful means, John could likely face criminal charges as he has no legal exemption for growing this controlled substance.

Example 2: Mary, a member of the Native American Church, grows peyote for religious ceremonies. The church's use of peyote is legally recognized and protected under U.S. law. Provided she complies with regulations on who can harvest and use peyote, Mary would not likely face any criminal charges for her cultivation.

What Are the Potential Penalties?

Cultivating peyote is a "wobbler" offense in California, meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances, facts of the case, and your prior criminal history.

For misdemeanor charges, you could face:

  • Fines of up to $1000; and
  • Up to one year in county jail.

For felony charges, you could face:

  • Fines of up to $10,000; and
  • Up to 3 years in state prison.

What Are the Common Defenses?

If you're charged with violating HSC 11363, a skilled California defense attorney may be able to employ one or more defense strategies to counter the charges. These include the following:

  1. Mistake of fact: If you can show you did not know the plant you were cultivating was peyote, you might have a viable defense.
  2. Religious freedom: If you can provide evidence that you were cultivating peyote for purely religious purposes, you may be able to get the charges dismissed. This can be a complex defense to prove if cultivation happened outside reservation lands.
  3. Invalid Search and Seizure: A defense attorney could have the evidence thrown out if the peyote was discovered during an unlawful search.

Contact our California criminal defense attorneys for more information. Eisner Gorin LLP has offices in Los Angeles, CA.

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