Possessing psilocybin mushroom spores is not, by itself, a crime under California’s two spore statutes, Health and Safety Code sections 11390 and 11391. Those sections punish cultivating spores with intent to produce psilocybin or psilocyn, and selling, giving away, importing, or transporting spores for sale to facilitate that cultivation. The mushrooms are a different matter: psilocybin and psilocyn are Schedule I controlled substances in California, and possessing mushrooms that contain them is a crime.

What the two spore statutes make a crime

Health and Safety Code section 11390 applies to a person who, “with intent to produce” psilocybin or psilocyn (the substances listed in section 11054(d)(18) and (19)), “cultivates any spores or mycelium capable of producing mushrooms or other material” that contains them. Both parts are required: cultivation, and the intent to produce the drug. Holding a sealed spore syringe or an unused spore print is not cultivation.

Health and Safety Code section 11391 covers a person who transports, imports into California, sells, furnishes, or gives away spores or mycelium, or offers to do any of those things, “for the purpose of facilitating a violation of Section 11390.” The statute does not say the cultivation being facilitated must be someone else’s, and it reaches importing as well as selling. Under subdivision (b), “transport” means transport for sale, so simply carrying spores is not transport under this section. Subdivision (c) adds that the section “does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.”

Each section is punishable by up to one year in county jail or by a state prison term. Neither one makes it a crime to possess spores with no cultivation and no facilitating purpose. The general possession law described below reaches material containing “any quantity” of psilocybin or psilocyn; whether it could reach a particular spore product would depend on what that product actually contains, a factual question these statutes do not answer.

Buying spores to grow them is not a safe harbor

A “microscopy” or “research use only” label does not change what these sections prohibit. Cultivating spores with intent to produce psilocybin is a crime under section 11390 however the spores were bought or marketed. The one express permission in the same article of the code, section 11392, allows spores to be obtained and used for “bona fide research, instruction, or analysis” that is “approved by the Research Advisory Panel,” and only if not in violation of federal law. A vendor’s label is not that approval.

Intent matters before anything grows, too. Penal Code section 21a defines an attempt as “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission,” so steps toward growing, taken with that intent, can matter even if nothing is ever harvested. And section 11391(c) keeps aiding-and-abetting and conspiracy prosecutions available when others are involved.

The mushrooms themselves are illegal

Health and Safety Code section 11054(d)(18) and (19) list psilocybin and psilocyn in Schedule I, and the listing covers “any material, compound, mixture, or preparation” containing any quantity of either one. Mushrooms that contain them fall within it.

  • Possession. Section 11377(a) covers substances listed in section 11054(d) “except paragraphs (13), (14), (15), and (20)” of that subdivision, so psilocybin and psilocyn are included. Simple possession carries a county jail term of no more than one year, unless the person’s record includes an offense from the list in Penal Code section 667(e)(2)(C)(iv) or a registrable sex offense; then the sentence may instead fall under Penal Code section 1170(h).
  • Possession for sale. Section 11378 makes possessing these substances for sale punishable under Penal Code section 1170(h).
  • Selling, giving away, or transporting for sale. Section 11379 covers these acts and offers to commit them, with a term of two, three, or four years under section 1170(h).

Proposition 36’s treatment-mandated felony for repeat drug possession, section 11395, does not apply to psilocybin itself: its definition of “hard drug” excludes “psilocybin (mushrooms).” A section 11377 conviction can still count as one of the two prior convictions that make a later hard-drug possession charge eligible for that felony.

Federal law also lists psilocybin and psilocyn in Schedule I (21 U.S.C. section 812(c)). This page covers California law only.

If police found spores or mushrooms

What was found shapes what can be charged. Sealed spore syringes or prints with nothing else do not show cultivation; growing mycelium or mushrooms are the facts that sections 11390 and 11377 turn on, and any evidence of a sale or shipment brings sections 11391 and 11379 into play. If you are facing questions or charges involving spores, mushrooms, or a home grow, the Law Offices of David S. Chesley’s drug crimes defense team can go over the police report and which statute actually fits the facts. Call (800) 755-5174.