Under Health & Safety Code 11363 HS, cultivating peyote is a crime in the state of California. The offense is a wobbler that can be prosecuted as
- a misdemeanor or
- a felony, and
- carries a penalty of up to 3 years in jail or prison.
The language of the statute 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.
Simply possessing peyote is punishable under Health & Safety Code 11350 HS – possession of a controlled substance law.2 Cultivating the drug under HS 11363 is a more serious crime than simple possession—comparable to the crime of Health & Safety Code 11379-6 HS – manufacturing drugs or narcotics.
11363 HS states that “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.”
Is it a crime to cultivate peyote in California?
The legal definition of the crime of peyote cultivation in California is as follows:
- You planted, cultivated, harvested, dried or processed,
- Any plant of the genus Lophophora (also known as peyote) or any part thereof. 1 2 3
Example: Mitch obtains some seeds that he knows are for the peyote plant. He plants them in a set of containers, thinking that he will harvest and ingest the peyote eventually.
But then Mitch decides to stop using all drugs, so he gives the young peyote plants to his friend Tracy.
Tracy cares for the peyote plants, watering and fertilizing them as they mature. But then her roommate gets nervous about having them in the apartment and makes Tracy get rid of them. Tracy gives them to her boyfriend Jerome.
Jerome takes the plants and eventually harvests and dries them when they are mature.
Mitch, Tracy and Jerome are all guilty of peyote cultivation under Health & Safety Code 11363. This is because Mitch planted peyote, Tracy cultivated it, and Jerome harvested it.
HS 11363 makes it a crime to grow peyote in California.
Is cultivating peyote protected as an act of religious freedom?
Laws against cultivating peyote are problematic because of the right to freedom of religion set forth in both the U.S. and the California constitutions.4
This is because people who adhere to the Native American Church (also known as peyotism) consume peyote as part of their religious rituals.
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.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.
What are the penalties under Health & Safety Code 11363 HS?
The crime of cultivation of peyote is what is known as a “wobbler”. This means that the prosecutor may choose to charge it as either a misdemeanor or a felony.6
If you are charged with misdemeanor cultivation of peyote, the potential penalties will be:
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).7
Cultivation of peyote as a felony carries the following penalties:
- Sixteen (16) months, two (2) years or three (3) years in California state prison; and/or
- A fine of up to ten thousand dollars ($10,000).8
How can I fight the charges?
One of the most common legal defenses for fighting California peyote cultivation charges is the legal defense of “mistake of fact.”
As Glendale drug crimes defense attorney Neil Shouse9 explains:
“Many people do not have the sophisticated botanical knowledge necessary to identify peyote seeds or plants. You may well have planted or grown a peyote plant without having any idea that it was actually peyote. If this is the case, then you are not guilty under Health & Safety Code 11363.”
Another common legal defense to peyote charges is that the police and prosecutors simply got the wrong person. All too frequently, we see people “framed” for cultivating peyote when in fact the plants were being cultivated by a
- friend,
- family member or
- roommate.
Call us for help…
Call us for help.
For questions about the crime of Health & Safety Code 11363 HS peyote cultivation, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on so-called “Schedule I” drugs in Nevada, please see our page on “Schedule I” drugs in Nevada.
Legal References:
1 Health & Safety Code 11363 HS – Planting, cultivating and harvesting [peyote]; punishment.
2 Health & Safety Code 11350 HS – Possession of designated controlled substances; punishment and fine; exception.
Health & Safety Code 11054 HS – Schedule I; substances included. (“(a) The controlled substances listed in this section are included in Schedule I. . . . (d) Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this subdivision only, the term “isomer” includes the optical, position, and geometric isomers): . . . (15) Peyote–Meaning all parts of the plant presently classified botanically as Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of the plant, and every compound, manufacture, salts, derivative, mixture, or preparation of the plant, its seeds or extracts (interprets 21 U.S.C. Sec. 812(c), Schedule 1(c)(12)).”)
3 Health & Safety Code 11363 HS – Planting, cultivating and harvesting [peyote]; punishment, endnote 1 above.
4 U.S. Const. amend. I.; Cal. Const. art. I, sec. 4.
6 Health & Safety Code 11363 HS – Planting, cultivating and harvesting [peyote]; punishment, endnote 1 above.
7 Same.
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment.
8 Same.
See also Penal Code 18 PC – Punishment for felony not otherwise prescribed; alternate sentence to county jail.
9 Our Glendale drug crimes defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings and are extremely familiar with California drug laws.