Prop 36 excludes psilocybin as San Diego treatment numbers diverge

Does Prop 36 treat psilocybin as a "hard drug"?

No. Proposition 36, in effect since December 18, 2024, added Health and Safety Code section 11395, the "Treatment-Mandated Felony Act"². It lets prosecutors file a felony when a person with two or more prior convictions for listed drug offenses possesses a "hard drug". The defendant can plead guilty and elect treatment, and the charge is dismissed if they complete it².

The definition does the work. Subdivision (e)(1) defines "hard drug" by reference to California's drug schedules and names fentanyl, heroin, cocaine, methamphetamine and PCP. Subdivision (e)(2) then excludes cannabis, peyote, LSD and "other psychedelic drugs, including mescaline and psilocybin (mushrooms)", plus the other substances in subdivisions (d) and (e) of section 11054¹. Possessing psilocybin, on its own, can't be charged under 11395.

Two details cut the other way. Simple psilocybin possession is still charged under section 11377, a misdemeanor for most people, punishable by up to a year in county jail³. And convictions under 11377, 11378 and 11379 are on 11395's list of qualifying priors, so a psilocybin record can count toward a later treatment-mandated felony if the person is charged with possessing fentanyl or methamphetamine¹. Our California psilocybin penalties guide walks through each statute.

What do San Diego's treatment numbers show?

It depends which agency you ask, because two agencies count different stages at different times.

The District Attorney's office counts cases and plea outcomes. Its Prop 36 page, with a chart labeled September 2026, reports 5,953 Prop 36 charges issued countywide (North 2,153, Central 1,812, East 1,338, South 650). Of those, 4,028 were under the drug felony, section 11395, and the rest under Penal Code 666.1, the measure's repeat-theft felony. The page counts 1,657 convictions under section 11395 since April 7, 2025. It says 95.23% of those convictions had a drug-treatment pathway: 67.7% elected what the office calls a DEOJ (deferred entry of judgment) referral, 24.0% got standard probation and 3.5% went to Drug Court⁴. CalMatters, citing the DA's office, reported that as of February 2026, 71% of defendants who pleaded guilty to a Prop 36 drug felony had been started toward mandated treatment, and fewer than 5% were sentenced to jail or prison⁵.

The county Department of Behavioral Health Services counts what happens after a referral. In December figures cited by CalMatters, fewer than a third of the people referred had agreed to treatment, fewer still were being treated, and two had graduated. CalMatters notes that the DA's data "only captures part of the picture"⁵.

So the 95.23%, the 71% and the "fewer than a third" measure different things and shouldn't be set side by side as if they disagree. The DA's figures describe how cases were resolved in court, and its 95.23% counts standard probation as a treatment pathway. The county's figure describes whether people who were referred actually took up treatment. None of them involves psilocybin: the DA's page names fentanyl and methamphetamine and doesn't mention psychedelics⁴.

How does that compare statewide?

CalMatters, citing a 2026 report from the California courts to the Legislature, reported 18,666 felony drug cases charged under Prop 36 in counties that reported treatment data, with 17% of defendants opting for treatment and 57 cases dismissed after the defendant graduated⁵.

The same article cited an analysis by the California Policy Lab and the Committee on Revision of the Penal Code counting 568 prison admissions on Prop 36 drug charges from January 2025 to July 2026. It reported that the 2026-27 state budget set aside $50 million for pretrial services, behavioral health and court workload, while a group including Sen. Catherine Blakespear of Encinitas had sought $400 million for addiction treatment⁵.

Why does it matter for San Diego readers?

Because Prop 36 created a new felony for some drug possession, people reasonably ask whether it raised mushroom penalties. For psilocybin itself, it didn't: the statute excludes it by name. What changed is the weight of a prior record, since a psilocybin possession conviction can now help qualify someone for the treatment-mandated felony on a later fentanyl or methamphetamine charge.

None of this makes psilocybin legal here. Possession, sale and cultivation remain crimes under California law, as our California access map explains, and county actions involving psilocybin and mushroom-labeled products are tracked in our San Diego enforcement log.