Health & Safety Code 11363 HS – Cultivating Peyote in California
Updated November 2, 2020
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.
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.”
“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 analysis of Health & Safety Code 11363 HS, the California statute that makes it a crime to cultivate peyote.
In The Only State Where Selling Peyote Is Legal, The Cactus Is Threatened And Still Controversial
In ecological terms, South Texas is known as brush country – it’s home to lots of thorny shrubs, trees and palms. Its humid climate makes it similar to parts of Northern Mexico, and it’s only in these two places where you can find one member of the cacti family which has been controversial, to say the least: peyote – genus Lophophora – is a small cactus native to the Rio Grande Valley. It contains a psychoactive substance known as mescaline, and it’s been used as a religious sacrament in ceremonies by native cultures for centuries. But selling it is barred in every state except for the one where it grows: Texas.
Peyote sellers in Texas are required to first register with the U.S. Drug Enforcement Administration, and then with the Texas Department of Public Safety. They must report how much peyote they harvest from the wild, and renew their license every year. Currently, there are only four licensed peyote distributors in Texas, and one of them is Salvador Johnson.
“I’ll be 72 in, probably in about three weeks. But I still harvest peyote, so still going strong, still feel young,” Johnson says.
Johnson lives in Mirando City; it’s a town of less than 200 people and is about 35 miles east of Laredo. He’s lived there pretty much all his life. After graduating from high school in 1966, Johnson joined the Air Force and was deployed to Vietnam. When he came back home, he followed in his father’s footsteps.
“My father was still living and he had moved back to Mirando. He sold peyote for about 18 years. I came out back here and I applied for my license, and I started selling peyote. I’ve been doing it ever since,” Johnson says.
But distributors like Salvador Johnson are only allowed to sell peyote to registered members of one religious organization called the Native American Church. To buy it, church members must prove their ancestry.
“The most important document for a person to have is what we call the Certificate of Indian Blood, because that will show you who you are, who your parents are and your blood quarter; you have to be at least one-fourth [American] Indian to purchase peyote in the state of Texas, or possess peyote in the state of Texas,” Johnson says.
Folks who meet these requirements drive to the Valley from every corner of the United States to buy peyote, or as church members call it, “medicine.” James Flaming Eagle Mooney is one of them.
“To me, it’s a symbolic representation of God. It’s basically a truth ceremony; it shows you who you are, your godliness,” Mooney says.
Mooney has known Johnson for decades – he is the former leader of the Oklevueha branch of the Native American Church.
“I believe that this is the only way that a certain group of humans can get close to God, and there’s no other way. This religion could never keep on without this peyote,” Mooney says.
Peyote is a small, round cactus. It has no thorns, but has unique properties that make it an especially resilient species. If you cut what’s called the “button,” which is used in ceremonies, the root has the ability to slowly regrow a new button. Still, wild peyote is on the decline. According to a report by the International Union for Conservation of Nature, there’s been at least a 30% decline over the last 20 years.
“We are overharvesting the shrinking area of the planet that actually supports wild peyote,” says Martin Terry, a professor of botany at Sul Ross State University in Alpine
Terry has been studying peyote for three decades. He says overharvesting is happening because Texas does not allow for peyote cultivation.
“What is the justification behind this? Why can’t it be cultivated? That’s a very good question: If you happen to be talking to any Texas legislators in the near future, ask them that question,” Terry says.
But Terry says this attitude towards peyote is nothing new.
“Since the Spaniards set foot on these shores, there has been persecution of people who used peyote, and that continues to the Drug Enforcement Administration of today,” Terry says.
Native American Church members like Mooney say these laws have been used as a way to persecute their people.
“People need to understand that law was not just to deal with peyote; it had to deal with peyote in the sense that it was a sacrament that the indigenous peoples of North and South America had used continuously, since before recorded history,” Mooney says.
The DEA lists peyote as a Schedule I controlled drug, which puts it in the same category as heroin or LSD. But distributors, users and scientists like Terry say it causes no real harm to the human body.
“People using peyote in a ceremonial sense, and using it, let’s say, once a month or so, which is about how the ceremonies are spaced out, in reality – if it’s used properly, the way that it’s always been used – ceremonially – peyote is absolutely safe. And yet, we have governments putting it into things like Schedule I, which for there is no evidence whatsoever of adverse effects,” Terry says.
Johnson, the peyote distributor, traces his own roots to the Mexican state of San Luis Potosí where peyote grows and is used. To him, selling it something of a family tradition; he took over the business from his father, and he hopes that will continue after him.
“Either one of my daughters, my son, my grandsons: one of them, more than likely, will pick up the business that I have. But it’s something that has to come from you and your heart,” Johnson says.
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From Texas Standard: In ecological terms, South Texas is known as brush country – it’s home to lots of thorny shrubs, trees and palms. Its humid climate…