The Legality of Magic Mushrooms in California in 2024

by Omar Figueroa & Lauren Mendelsohn

July 9, 2024

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.” Other California cities, including Arcata and  San Francisco, followed suit.

At the state level, Decriminalize California, a statewide grassroots effort to legalize psilocybin mushrooms in the Golden State via a voter initiative, picked up considerable momentum, but unfortunately did not collect sufficient signatures to make it on the ballot.  In 2023,  State Senator Scott Wiener introduced Senate Bill 58, which would have substantially altered the legal landscape with regard to magic mushrooms by allowing for the “facilitated or supported use” of mushrooms containing psilocybin and/or psilocyn.  (Facilitated or supported use is defined as the supervised or assisted personal use of magic mushrooms “by an individual or group of persons 21 years of age or older, or the assisting or supervising of such persons in such use, within the context of counseling, spiritual guidance, community-based healing, or related service.”)  The allowable amount per participant would have be two grams of psilocybin or four ounces of a plant or fungi containing psilocybin.  See, proposed Health & Safety Code § 11377.1(g)(1).  Senate Bill 58 was vetoed by Governor Newsom because it would legalize possession prior to regulation of treatment providers, and you can read the veto statement here.

In 2024, in response to the veto statement, Senator Wiener introduced Senate Bill 1012, the “Regulated Psychedelic Facilitators Act and the Regulated Psychedelic Assisted Therapy Act.” The bill would have established regulated, licensed psychedelic services in the state, replete with a Board of Regulated Psychedelic Facilitators and a Division of Regulated Psychedelic-Assisted Therapy.  Regrettably, Senate Bill 1012 died in committee, a victim of California’s budget deficit. See, California’s Latest Psychedelics Bill Dies in Committee, Psychedelic Alpha.

Yet, Senator Wiener issued a statement vowing to keep pushing for reform:

“We’ve been working for four years to legalize access to psychedelics in California, to bring these substances out of the shadows and into the sunlight, and to improve safety and education around their use,” said Senator Wiener. “We’re in a terrible budget year, where all bills with significant costs are at risk. Nevertheless, it’s disappointing for this bill not to move forward. Psychedelics have massive promise in helping people heal and get their lives back on track. It makes enormous sense for California to lead in creating regulated access under the supervision of a licensed professional. I’m highly committed to this issue, and we’ll continue to work on expanding access to psychedelics.”

Until the legal landscape changes, California law with respect to magic mushrooms reflects the draconian priorities of the War on Drugs.

The question remains: how illegal are “magic mushrooms” (defined as fungi containing the controlled substances psilocybin or psilocyn) under California law in 2024?  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.”  

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 for no profit.

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.  The good People of the State of California yearn for 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 info@omarfigueroa.com to schedule a confidential legal consultation.