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Spore kits allow people to cultivate psilocybin but generally don’t contain the drug. So the argument goes that because spore kits are psilocybin-free, they must be legal, but there are a lot of problems with this argument.
Ostensibly because of its perceived potential harm, the drug was included in the Controlled Substance Act enacted by the 91st United States Congress and signed into law in 1970. Every person who transports, imports into this state, sells, furnishes, gives away, or offers to transport, import into this state, sell, furnish, or give away any spores or mycelium capable of producing mushrooms or other material which contain psilocybin for the purpose of facilitating a violation of the prior paragraph shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.
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The Legality of Magic Mushrooms in California
Psilocybe cubensis photographed in Xalapa, Veracruz, Mexico, by mycologist Alan Rockefeller.
California has been at the forefront of psychedelic policy change for years. In 2019, the City of Oakland became “the first in the nation to decriminalize a wide range of psychedelics such as psilocybin mushrooms and ayahuasca.” Similarly, in early 2020, city leaders in Santa Cruz unanimously agreed to “decriminalize the adult use, possession, and cultivation of entheogenic psychoactive plants and fungi.” More broadly, Decriminalize California, a statewide grassroots effort to legalize psilocybin mushrooms in the Golden State via a voter initiative, picked up considerable momentum, but unfortunately stalled out after the outbreak of COVID-19 made the in-person collection of signatures practically impossible.
Most recently, on November 15, 2020, State Senator Scott Wiener tweeted, “It’s time to take a health/science based approach to drugs & move away from knee-jerk criminalization. Psychedelics have medicinal benefits & they shouldn’t be illegal. That’s why, when the Legislature reconvenes, we’ll work to decriminalize their use.”
Senator Wiener’s tweet linked to a news article which discusses increasing numbers of patients and therapists coming out of the psychedelic closet.
“Magic mushrooms” as they are colloquially known, have been the focus of intense research in recent years. In late 2018, Compass Pathway’s psilocybin treatment for treatment resistant depression received Breakthrough Therapy designation from the Food and Drug Administration.
The question remains: how illegal are “magic mushrooms” (defined as fungi containing the controlled substances psilocybin or psilocyn) under California law? Is there a viable medical defense? What about a religious defense?
Under California law, psilocybin and psilocyn, two active substances in “magic mushrooms,” are classified as Schedule I hallucinogenic controlled substances.
California Health & Safety Code Section 11054, subdivision (d). There is no medical or religious exception in the statutes.
California law prohibits, as an alternate felony-misdemeanor or “wobbler”, the cultivation of “any spores or mycelium capable of producing mushrooms or other substance” containing psilocybin or psilocyn, if done with the intent of producing psilocybin or psilocyn.
California Health & Safety Code Section 11390. This means that, depending upon the circumstances, a person suspected of unlawful cultivation of mushrooms faces the possibility of a felony arrest and conviction with an exposure of up to three years in the state prison.
California Health & Safety Code Section 11391 similarly prohibits various types activity related to mushrooms, if done for the prohibited purpose of facilitating a violation of Section 11390. Because of the intent requirement, the scope of Section 11391 is quite narrow, and this particular section by its terms does not prohibit the sales, possession for sales, and, transportation for sale of mushrooms or other material which contain psilocyn or psilocybin unless there is specific intent. Depending on the circumstances, a person suspected of a violation of Section 11391 faces the possibility of a felony arrest and conviction with an exposure of up to three years in the state prison.
California Health & Safety Code Section 11392 provides a limited exception for “bona fide research, instruction, or analysis” provided such activity is: 1) “not in violation of federal law” and, 2) “the research, instruction, or analysis is approved by the Research Advisory Panel established pursuant to Sections 11480 and 11481” of the Health and Safety Code.
Because psilocyn or psilocybin are classified as Schedule I hallucinogenic controlled substances pursuant to Health and Safety Code Section 11054, subdivisions (d)(18) and (d)(19), any “material, compound, mixture, or preparation” containing psilocyn or psilocybin is subject to prosecution pursuant to another set of statutes applicable to Schedule I controlled substances under California’s Uniform Controlled Substances Act.
In particular, Health and Safety Code Section 11377 forbids the possession of any “material, compound, mixture, or preparation” containing psilocyn or psilocybin, which ordinarily is classified as a misdemeanor punishable by up to one year in the county jail unless the person has certain aggravating “priors.”
Pursuant to Proposition 36, anyone charged with personal use, possession for personal use, or transportation for personal use of a controlled substance, may qualify for drug treatment instead of jail. The court must grant probation as an alternative to incarceration to qualifying defendants convicted of “nonviolent drug possession offenses,” as defined in Penal Code § 1210(a). Penal Code § 1210.1(a). Courts must impose, as a condition of probation, completion of a drug treatment program not to exceed 12 months, with optional aftercare of up to six months. The court may also require that the defendant participate in vocational training, family counseling, literacy training, and/or community service. Penal Code § 1210.1(a). Qualifying defendants must consent to participate in a drug treatment program, must be amenable to treatment, and must not otherwise be excluded from participation under Penal Code § 1210.1(b).
The scope of Proposition 36 is narrow and does not apply to sales-related offenses. For example, Health and Safety Code Section 11378 forbids the possession for sale of any “material, compound, mixture, or preparation” containing psilocyn or psilocybin. The crime is classified as a non-reducible felony subject to sentencing pursuant to Penal Code Section 1170(h), which generally means up to three years in the county jail.
Moreover, Health and Safety Code Section 11379 forbids numerous activities as felonies which are generally punishable by up to four years in the county jail. Thus, anyone who “transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport” certain specified controlled substances (including any “material, compound, mixture, or preparation” containing psilocyn or psilocybin) faces substantial criminal exposure for conduct which constitutes a non-reducible felony under California law.
Additionally, subdivision (b) increases the criminal exposure to nine years for any person who transports controlled substances “within this state from one county to another noncontiguous county.”
This means, for example, that if a person were to transport for sale from one county to another any “material, compound, mixture, or preparation” containing psilocyn or psilocybin, and the counties are contiguous (meaning adjacent), the criminal exposure is a maximum of four years; however, if the counties are not contiguous (meaning the person travels through a total of three or more counties) the criminal exposure increases to a maximum of nine years in the county jail.
The case law interpreting Health and Safety Code Section 11379 is draconian. For example, in People v. Patterson (1999) 72 Cal.App.4th 438, the Third Appellate District of the California Court of Appeal held that, in order to prove the offense of transportation of a controlled substance for sale between noncontiguous counties, the prosecution did not have to prove that defendant intended to facilitate the sale of the drug in the noncontiguous county. The Court of Appeal rejected the defendant’s construction of the statute, which would “place an onerous burden upon law enforcement to identify the county in which a defendant who is transporting illegal drugs intends to sell them.” 72 Cal.App.4th at 445.
Let us consider the following thought experiment. A person travels by car from San Francisco to San Jose to sell a few dozen psilocybin chocolates. The vehicle is pulled over for speeding on 280 near Sunnyvale. The driver is nervous, and the officer starts asking lots of questions. The person panics and blurts a confession: they were transporting psilocybin chocolates from San Francisco to San Jose to sell at cost .
Because the City and County of San Francisco is not contiguous with the County of Santa Clara (one has to travel through either San Mateo County or Alameda County), such transportation for sale would constitute a non-reducible felony punishable by three, six, or nine years in the county jail, depending on the circumstances. It makes no difference that the person intended to sell the chocolates at cost; the law does not require that the seller intend to make a profit, only that the seller intend to make a sale.
Could there be a viable medical defense? Possibly, if one can establish medical necessity by showing that the person has no adequate alternatives to the charged conduct. Realistically, it would be an uphill battle given that criminal courts tend to be skeptical of the medical necessity defense. For example, in People v. Trippett (1997) 56 Cal.App.4th 1532, the California Court of Appeal affirmed the trial court’s rejection of the medical necessity jury instruction requested by legendary activist Pebbles Trippet, reasoning that she was not entitled to a medical cannabis necessity defense because she failed to establish that she had no adequate alternatives as she could have taken prescription Marinol instead.
What about a religious defense? As one can also read in the Trippett decision, criminal courts tend to be skeptical of the religious defense and treat such claims dismissively. Absent express statutory protections, the religious defense is challenging given United States Supreme Court precedent such as Employment Division v. Smith, which held that the First Amendment does not require states to accommodate illegal acts performed in pursuit of religious beliefs, and City of Boerne v. Flores, which struck down the federal Religious Freedom Restoration Act as it applies to the states as an unconstitutional use of Congress’s enforcement powers.
A different approach would be to rely on the Free Exercise Clause of the California Constitution, which provides, in pertinent part:
Free exercise and enjoyment of religion without discrimination of preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace and safety of the State. The Legislature shall make no law respecting an establishment of religion.
California Constitution, Article I, section 4.
The Assembly Judiciary Committee of the California State Legislature has authored an extensive Background Paper summarizing California’s Free Exercise Clause case law, and distilling arguments concerning a proposal, Assembly Bill 1617, to augment existing protections via a California version of the Religious Freedom Restoration Act. As the Background Paper notes, there is considerable ambiguity about the level of judicial scrutiny afforded by the Free Exercise Clause of the California Constitution. The California Supreme Court has declined to decide the question of whether the compelling interest test applies when the Free Exercise Clause of the California Constitution is invoked, leaving open for a future day the question of the scope of state constitutional protections for the religious use of psilocyn and/or psilocybin.
In sum, the time has come to update the legal landscape pertaining to magic mushrooms in California, and we thank visionary legislators such as State Senator Wiener for envisioning a better future. Hopefully, 2021 will be the year when exciting legislative proposals begin long-awaited changes in the laws that govern our relationship with our ancient fungal allies.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding psychedelics law in California, please contact the Law Offices of Omar Figueroa at 707-829-0215 or [email protected] to schedule a confidential legal consultation.
In sum, the time has come to update the legal landscape pertaining to magic mushrooms in California, and we thank visionary legislators such as State Senator Wiener for envisioning a better future. Hopefully, 2021 will be the year when exciting legislative proposals begin long-awaited changes in the laws that govern our relationship with our ancient fungal allies.
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