Filed 2/24/21 P. v. Outlaw CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ROYELLE LEON OUTLAW,

 Defendant and Appellant.

2d Crim. No. B305932

(Super. Ct. No. YA099243)

(Los Angeles County)

Royelle Outlaw appeals an order revoking his 

probation and executing a suspended sentence. He contends that 

he is entitled to (1) have the three prior prison term 

enhancements stricken from his sentence due to a change in law 

that occurred after sentencing, and (2) additional days of 

presentence custody credit. We agree with both contentions, and 

remand. 

FACTUAL AND PROCEDURAL HISTORY

Outlaw quickly walked away from a car when he saw 

Los Angeles County sheriff deputies approach him. The car was 

unoccupied, and a loaded semiautomatic firearm was in the front 
2

passenger seat. A deputy searched Outlaw and found cocaine in 

his pants. 

In February 2019, Outlaw pled guilty to possession of 

a controlled substance with a firearm (Health & Saf. Code, 

§ 11370.1, subd. (a); count 1) and possession of a firearm by a 

felon (Pen. Code,1 § 29800, subd. (a)(1); count 2). He admitted the 

allegation that he served five prior prison terms. (§ 667.5, subd. 

(b).) The trial court sentenced him to six years in county jail 

(three years for count 1 and one year for each of three prior 

prison terms).2 It suspended execution of sentence and granted 

three years’ probation. 

In March 2020, Outlaw violated the terms of his 

probation, and the trial court revoked probation. Before the court 

ordered the sentence executed, the prosecutor noted that Outlaw

should have been sentenced to state prison, and not county jail. 

The court agreed and ordered Outlaw to serve the six-year 

sentence in state prison. Outlaw received 176 days of custody 

credit (88 days of actual custody and 88 days of conduct credit). 

DISCUSSION

Prison Priors

When the trial court originally sentenced Outlaw,

section 667.5, subdivision (b) required it to add one-year

enhancements to his sentence for each prior prison term. (People

v. Jennings (2019) 42 Cal.App.5th 664, 681, [enhancement 

1 Further unspecified statutory references are to the Penal 

Code. 

2 The sentence for count 2 was stayed pursuant to section 

654, and the two other prison priors were stricken pursuant to 

section 1385. 
3

mandatory unless stricken].) The Legislature subsequently 

enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats 2019, 

ch. 590, § 1) (S.B. 136), which, effective January 1, 2020, limits 

the applicability of prior prison term sentence enhancements to 

terms served for sexually violent offenses. (Jennings, at p. 681.)

The provisions of S.B. 136 apply retroactively to cases that are 

not yet final on appeal. (Jennings, at pp. 681-682.)

Outlaw contends that the one-year enhancements for 

the three prison priors should be stricken from his sentence 

because his judgment was not yet final on the date S.B. 136 

became effective.

3 (In re Estrada (1965) 63 Cal.2d 740.) We 

agree. 

In Martinez, supra, 54 Cal.App.5th 885, we decided 

under similar circumstances that a defendant (Martinez) was 

entitled to the retroactive benefit of S.B. 136 on appeal from an 

order revoking his mandatory supervision. There, the trial court 

imposed a split sentence of four years eight months, two years of 

which were based on two prison priors pursuant to section 667.5, 

subdivision (b). Martinez was to serve the first two years in 

county jail and the remaining two-year eight-month term on 

mandatory supervision. (Martinez, at p. 890.) After Martinez 

violated the terms of his supervision, the trial court revoked 

supervision and ordered Martinez to serve the remainder of his 

sentence in county jail. (Ibid.) Subsequently, the Legislature 

3 The Supreme Court has granted review of cases 

presenting this issue where probation is granted and execution of 

the sentence is suspended. (See People v. Esquivel (Mar. 26, 

2020, B294024) 2020 WL 1465895 [nonpub. opn.], review granted 

Aug. 12, 2020, S262551; People v. Martinez (2020) 54 Cal.App.5th 

885 (Martinez), review granted Nov. 10, 2020, S264848.) 
4

enacted S.B. 136. Martinez appealed the order revoking his 

supervision, arguing that S.B. 136 applied retroactively to his 

sentence. We agreed. (Martinez, at pp. 890-891.)

In concluding that S.B. 136 applied, we observed that 

a sentence becomes final “‘when all available means to avoid its 

effect have been exhausted.’ [Citation.] It has not become final 

‘if there still remains some legal means of setting it aside’ on 

direct appeal. [Citation.]” (Martinez, supra, 54 Cal.App.5th at p. 

891.) In the context of probation and supervision, a “judgment is 

not ‘final’ when the trial court imposes a sentence but suspends 

its execution. [Citation.] Criminal proceedings remain 

outstanding against the defendant, and the judgment ‘may or 

may not become final’ depending on what happens during the 

probationary period.” (Id. at p. 892, citing to People v. Chavez 

(2018) 4 Cal.5th 771, 781.) The “‘trial court’s jurisdiction to 

impose a final judgment—“continues into and throughout the 

period of probation” and expires only “when the probation period 

ends.” [Citation.]’.” (Martinez, at p. 893, citing to People v. 

McKenzie (2020) 9 Cal.5th 40 [holding that the retroactive 

benefits of Senate Bill No. 180 apply to a defendant who appealed 

an order revoking his probation and imposing a sentence].)

We reach the same conclusion here. The ameliorative 

benefits of S.B. 136, which took effect before Outlaw’s probation 

was revoked, applies here. The three one-year prison prior

enhancements must be stricken. (See Martinez, supra, 54 

Cal.App.5th at p. 894.) 

Withdrawal of Plea

Outlaw contends that he should have been given the 

opportunity to withdraw his plea when the trial court changed its 
5

original jail sentence to a prison sentence. The contention is 

forfeited. 

Before Outlaw pled to his crimes, the trial court

indicated it would suspend a sentence of six years in county jail

and grant probation. Outlaw responded that he “would accept 

[the open plea],” and pled guilty to his crimes and admitted the 

allegations. The trial court then sentenced Outlaw to county jail 

for six years, execution of which was suspended, and granted 

probation. 

After Outlaw’s probation was revoked one year later, 

the prosecutor argued the original sentence was erroneous 

because his crimes rendered him ineligible for a county jail 

sentence. (See Health and Saf. Code, §§ 11370.1, subd. 

(a); 29800, subd. (a)(1).) The trial court agreed and modified the 

sentence to be a state prison sentence. Outlaw did not object to 

the modification, nor did he seek to withdraw the plea. Because 

he did not object to the prison sentence, he forfeited the argument 

on appeal. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412-

1413.) 

Outlaw argues that his counsel rendered ineffective 

assistance when he failed to request a withdrawal of the plea. 

We disagree.

A defendant claiming ineffective assistance of counsel 

must show (1) counsel rendered deficient performance, and (2) 

resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 

668, 687; People v. Riel (2000) 22 Cal.4th 1153, 1175.) If a 

defendant fails to establish either prong, the claim should be 

denied. (Strickland, at p. 700.) We independently review 

whether Outlaw has demonstrated ineffective assistance of 

counsel. (In re Alvernaz (1992) 2 Cal.4th 924, 944-945.)
6

Here, Outlaw has not carried his burden to show 

counsel’s performance was deficient. If “‘“the record on appeal 

sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and 

failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected.’” 

(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) 

On this record, we cannot say that counsel’s 

performance was deficient. The record is silent as to why counsel

did not object, and he could have had a legitimate tactical reason 

for not doing so.

4 (People v. Majors (1998) 18 Cal.4th 385, 403 

[the record must affirmatively disclose the lack of a rational 

tactical purpose].) 

Presentence Custody Credits

Outlaw contends he is entitled to an additional 16 

days of custody credit (8 days of actual credit and 8 days of 

conduct credit). The Attorney General agrees. 

The record reflects Outlaw was in custody from 

October 1 through October 4, 2019 and January 27 through 

January 31, 2020. He did not receive custody credit for those 

days. The abstract of judgment should be corrected to reflect 16 

additional days of custody credit. 

DISPOSITION

The matter is remanded to the trial court with 

directions to strike the three one-year sentence enhancements 

imposed pursuant to section 667.5, subdivision (b), and to 

4 For example, counsel could have reasonably determined 

that objection would have been futile (People v. Price (1991) 1 

Cal.4th 324, 387), or decided not to risk resentencing to the upper

principal term.
7

resentence Outlaw. After resentencing, the clerk of the court 

shall prepare an amended abstract of judgment to reflect (1) the 

new sentence and (2) an additional 16 days of presentence 

custody credit. The clerk shall forward a certified copy of the 

amended abstract of judgment to the Department of Corrections 

and Rehabilitation. 

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Edmund Wilcox Clarke, Jr., Judge

Superior Court County of Los Angeles

______________________________

Sharon Fleming, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Scott A. Taryle and Chung L. Mar, 

Deputy Attorneys General, for Plaintiff and Respondent.