90 Day Diagnostic California Department of Corrections Evaluation

Recently, I've had a couple of cases involving 90 day Diagnostics with the California Department of Corrections and Rehabilitation (CDCR).  The 90 Day Diagnostic is a tool used by the court to get the opinion and evaluation of the California Department of Corrections whether an individual is a suitable candidate for probation or should be sentenced to state prison.  The way a 90 day diagnostic works is that the plea on the case is taken, usually, it’s a plea to state prison with the ability for the court to also give probation if it chooses to do so.  Different counties have their own language for what they call this type of plea, but usually it is called a "Lid."  For instance, a three year lid, would me the judge could sentence the defendant to three years in prison or give the defendant felony probation.  Meaning, if the defendant could get either prison or probation within the discretion of the judge.  It’s important to remember that probation still could mean incarceration up to a year on a "felony probation" sentence, which is also sometimes called a No Initial State Prison or a NISP sentence. 

However, if the defendant is sent to CDCR on a 90 day diagnostic, they will be sent to a Department of Corrections institution.  Which institution is up to the CDCR.  Once they are there they will be subjected to an evaluation by a counselor and a psychologist.  They will be looking at the criminal history of the individual, substance abuse problems, personal history and the individual's acceptance of responsibility.    They will then prepare a report that will be reviewed by the associate warden.  If there is a conflicting opinion regarding the counselor and psychologist on whether the individual should be sentenced to state prison or receive probation, the associate warden will be the tie breaker.  A final report regarding the diagnostic is then sent back to the judge, the DA, the probation department and the defendant's attorney.  The report, however, is merely advisory and has no binding effect.  The judge could still choose to give state prison if the report recommends probation and vice versa.  The defendant is then placed back on calendar with the court and sent back to the county jail where the offense occurred to come before the court for sentencing. 

Overall, the 90 day diagnostic can be a useful tool if the judge is not willing to give probation straight out of the gate.  Usually, this is in cases where the defendant has a prior arrest record or the offense is extremely serious.