DETJEN, J.

Certified for Partial Publication.

J. Peter Axelrod, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J. INTRODUCTION

Defendant Carlos Razo Cervantes stands convicted, following a jury trial, of the first degree murders of Jose Ceja (Ceja) (count 1) and Jeffrey Villegas (Villegas) (count 2). ( Pen. Code, § 187, subd. (a).) As to both counts, the jury found true a multiple murder special circumstance (§ 190.2, subd. (a)(3)), and found that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and personally and intentionally discharged a firearm during the commission of a violation of section 187, subdivision (a) ( § 12022.53, subd. (c) ). Defendant was sentenced to two consecutive terms of life without the possibility of parole, plus a consecutive term of 50 years to life.

On September 4, 2016, Ceja and Villegas were shot and killed. Three days later, defendant confessed to those shootings. On January 1, 2017, section 859.5, which until then applied to custodial interrogations of minors, was amended so it applied as well to custodial interrogations of adults. On appeal, defendant contends his confession was rendered inadmissible by the 2017 amendments to section 859.5 and so his convictions must be reversed. In the published portion of this opinion, we conclude the 2017 amendments to section 859.5 do not apply retroactively to bar admission of defendant's confession.

Defendant also contends the trial court reversibly erred in admitting his confession because it was involuntary and occurred after he invoked his privilege against self-incrimination. He further contends the omission of the word "or" from the court's instruction on involuntary intoxication prejudiced the jury's ability to consider whether he committed the murders with deliberation and premeditation. Finally, he contends the court prejudicially erred in instructing the jury on flight because there was no evidence to support the instruction. In the unpublished portion of this opinion, we conclude defendant's confession was voluntary and was not obtained in violation of his privilege against self-incrimination. We further find no error in the instructions but, in any event, conclude any error was harmless.

We affirm.

FACTUAL BACKGROUND

In the evening hours of September 4, 2016, Villegas and Ceja were fatally shot in the front yard of Villegas's home in Delano. Villegas's body was found near the front door, and Ceja's body was found in the yard next to a tractor trailer. Both men died of multiple gunshot wounds and were pronounced dead at the scene. Villegas was shot twice in the chest, resulting in massive hemorrhaging from his heart, aorta, and other organs. He also was shot through his right forearm. Ceja was shot once in the arm and once in the back. Both projectiles entered his chest and caused massive damage to multiple vital organs. One projectile was recovered from each of the men's bodies. Law enforcement determined the men were shot with a Glock firearm.

Defendant lived in the house immediately to the west of Villegas. Lounito V. lived in the house immediately to the east. Jose F. and Anna Z. lived with Villegas. As set forth below, these individuals and others provided testimony regarding the night of the incident.

I. Events Leading Up to the Shooting

On the evening of September 4, 2016, defendant, Lounito, Roland C., Roberto C., and Jesus H. were standing in front of defendant's house, talking. Defendant was drinking. After approximately 10 minutes, Roland left the conversation and walked to Lounito's house to use the WiFi.

Eventually, Ceja arrived at Villegas's house and waited outside. Thereafter, Lounito and the others began to leave defendant's front yard. Around the same time, Villegas pulled up to his own house. Defendant became agitated and angry, and said, "I'm gonna get him." Villegas walked toward his own front door. Lounito and Roberto walked toward Lounito's house, with Roberto in the lead. Jesus walked off in the same direction as Lounito and Roberto. II. The Shooting

Roberto testified that he was walking toward Lounito's house when he turned around and saw defendant walking toward Villegas's house with something in his hand and he heard a clicking sound. He acknowledged he previously told police that he saw defendant enter Villegas's property with a gun and heard him rack the gun. Roberto heard two shots, then heard Villegas screaming, "I didn't say anything, Carlos," followed by four more shots. Soon after, he saw defendant leaving Villegas's property in the direction of defendant's house. After the shooting, Roberto left. He eventually spoke with Roland and learned that Lounito had been taken in for questioning; he then spoke to police.

Lounito testified that he had taken a few steps into his driveway when he heard Villegas yell, "I didn't say anything. I didn't say anything," followed seconds later by several gunshots. Lounito continued toward the front of his house and waited a couple of minutes. When nothing further happened, Lounito went to his truck, which was parked in front of Villegas's house, and drove it around the block and back to his own driveway. When he returned, Roberto was gone. Lounito went inside his house with Roland, who had remained in Lounito's yard.

Roland testified that he was sitting at a patio table in Lounito's front yard when Roberto entered the yard. Roland heard two shots from somewhere very close, followed by Villegas screaming, "No. No, I wasn't talking shit." Roland then heard two more shots, followed by four shots in a row. Roland saw defendant leave Villegas's residence and walk back toward defendant's house. Roberto left immediately. Roland began packing his belongings. Lounito stated that he needed to get his truck, and also to return defendant's dog, which had gotten loose. Roland waited for Lounito to return, and they then went inside the house. Roland went into the restroom and opened the window to listen for sounds from Villegas, but heard nothing. After Roland left the restroom, defendant called Lounito twice. Lounito answered the second call and said, "Okay. I'll be right there." Roland prevented Lounito from going outside. Roland and Lounito looked at Lounito's surveillance cameras and did not see anyone outside the house. They then heard Jose outside calling for help. Lounito went outside and looked around, then returned and told Roland not to touch anything. Roland went home.

Jose and Anna testified that they arrived at Villegas's house, where they were living rent free, as it was getting dark, and they sat in the car for approximately five minutes. When Anna got out of the car, she saw Ceja on the ground underneath a tractor trailer. She thought he was asleep and told Jose, who pulled Ceja from under the vehicle and realized he was not breathing. Jose began giving Ceja CPR. They also saw Villegas on the ground near the front door. Anna called 911. They called out to the neighbors and Lounito came out. Jose took an inoperable gun from his car and asked Lounito to hold it because he did not want anyone thinking it was used in the murders. Jose and Anna were locked out of the house and did not have a place to stay. Lounito paid for them to get a motel room.

Lounito confirmed that, at some point "a long time" after the gunshots, he stepped back outside to see what was happening and heard Villegas's roommates, Jose and Anna, calling him frantically. Lounito went to Villegas's yard and saw Villegas on the ground near the front door and Jose trying to resuscitate Ceja. During this period, defendant briefly came into the yard and began picking up spent shells; he did not say anything. Jose gave Lounito a gun and Lounito put the gun in a tub in his front yard. He then waited with Jose and Anna for the police to arrive.

III. The Investigation

Police officers from the Delano Police Department arrived at Villegas's residence at approximately 8:30 p.m. They found Ceja next to the tractor trailer and Villegas next to the front door. Villegas had no pulse and Ceja had a weak pulse. They did not locate any weapons near either victim. Shell casings and live rounds were found near the victims. The casings were determined to be nine-millimeter casings from a Glock handgun, the same kind used to shoot Villegas and Ceja.

Officers searched Jose for weapons but did not find any. Jose denied any knowledge of who committed the shooting. He told police he had once seen defendant fire a gun during a barbecue. Jose thought the gun belonged to Lounito. He also told police that, a few days before the incident, he saw defendant approach a vehicle Villegas was in, pull out a gun, and state, "Tell me why I shouldn't shoot you right now." Villegas responded that he would get defendant's money.

Officers seized surveillance video from Lounito's residence for the night of the incident. Early the following morning, officers determined that the video showed someone on Lounito's property holding a firearm, and they suspected Lounito was that individual. Lounito was taken into custody. The video also showed defendant coming into Lounito's front yard on the evening of the incident.

While in custody, Lounito told a detective that he was not home at the time of the shooting and did not hear any gunshots. When confronted with evidence indicating he was at home, Lounito claimed he could not have heard gunshots over the sound of his television, fan, and air conditioner. At trial, Lounito testified that he lied to police because he believed his life was in danger.

Lounito owned several guns. He also had a magazine for a nine-millimeter Glock firearm, as well as nine-millimeter rounds. He told police the Glock had been stolen from his car and never reported. He later told police he gave the gun to defendant.

According to Lounito, Villegas owed Lounito $4,000 for bailing him out of jail, and Villegas was not making payments. Two days before the shooting, Lounito told Villegas he needed to pay because the bail bondsman was calling about the money. Lounito told officers about this debt and acknowledged that he was upset about it.

IV. Defendant's Statements

Defendant was interviewed at his home on September 7, 2016, three days after the incident, by Delano Police Detective Scott. Defendant told Scott that he was in Bakersfield on the night of the incident and could not return to his home that evening because the area was cordoned off by police. He denied going to either Villegas's or Lounito's house that evening. He stated that he had done repair work for Villegas and had received only a partial payment. Defendant told Scott he was struggling and eating food from the garbage while Villegas was living rent free.

Following this conversation, Scott arrested defendant and transported him to the police department. There, Scott interviewed defendant again. A video recording of the interview was played for the jury. In the interview, defendant stated that he went to Bakersfield at approximately 7:00 p.m. He stopped at a gas station and then received a call from his aunt telling him something had happened on his street. He drove back home, but his street was blocked off, and he was not able to return. He slept at his aunt's house that night and returned home the next morning by going through an alley and jumping over the fence.

Defendant denied going to Villegas's house that night and denied shooting him. He admitted he went to Lounito's house before going to Bakersfield. He claimed he knocked on the door, but no one answered, and he went home. Approximately five minutes later, Lounito called defendant and told him his dog had gotten loose, and that Lounito would put the dog back in defendant's yard.

Defendant initially stated he did not hear any gunshots that night because he was not home. He later acknowledged he heard four or five gunshots before he left for Bakersfield. When he left his house, he saw Jose and his girlfriend yelling for help, and saw a body.

Defendant stated that Villegas owed him $2,500 for building a wall for him, but had only paid him $400. Villegas made payments, but could never pay the full amount. According to defendant, Villegas was living rent free and did not care about paying defendant. Defendant had not talked to Villegas about the money for several months.

Defendant mentioned several times that he was the caretaker for his grandfather and was concerned because his grandfather was home and defendant did not like leaving him alone.

After the interview, Scott took defendant to a processing area outside the interview room. While being booked, defendant suggested he would tell Scott what happened if Scott permitted him to talk to his grandfather. Defendant then admitted he shot Villegas out of rage because Villegas was living better than him. He shot Ceja because Ceja was a witness. He drove to a "chop shop" in Bakersfield that same night to "melt[ ] down" the gun.

V. Defense Evidence

Delano Police Officer Mendoza testified that he spoke with Lounito on the night of the shooting. Lounito reported that he left his house around 8:00 p.m., and that he did not hear any gunshots or walk onto Villegas's property. Mendoza noticed a camera affixed to the front of Lounito's house and asked whether it was working and recording. Lounito responded that the camera did work but did not record.

DISCUSSION

I. Section 859.5

Section 859.5, which requires the electronic recording of certain custodial statements, was amended after defendant confessed to the shootings. Defendant contends the amendments should apply retroactively to his confession. He further contends the amendments would render his confession inadmissible, and reversal is therefore required. To the extent these arguments are forfeited, he claims ineffective assistance of counsel. The People contend defendant's arguments are forfeited and also lack merit and, regardless, reversal is not the appropriate remedy. We exercise our discretion and consider defendant's contention on the merits. As a result, we need not address defendant's ineffective assistance of counsel claim. (See People v. Hardy (1992) 2 Cal.4th 86, 209, 5 Cal.Rptr.2d 796, 825 P.2d 781.) We conclude the 2017 amendments to section 859.5 do not operate retroactively. Accordingly, we find no reversible error.

A. Additional Background

Defendant confessed to the shootings on September 7, 2016. At that time, section 859.5 required that the custodial interrogation of a minor suspected of committing murder be recorded in its entirety. (Former § 859.5.) However, this requirement did not apply to defendant, who was an adult. Defendant's confession was recorded on a cell phone in four separate clips, rather than in an uninterrupted recording. The booking conversation that precipitated the confession was not recorded.

Effective January 1, 2017, section 859.5 was amended to require, with limited exceptions, that the custodial interrogations of all persons suspected of committing murder, whether adult or minor, be recorded in their entirety. (§ 859.5, subds. (a), (b), (d); Stats. 2016, ch. 791, § 2.) If the recording requirement is not met, and the interrogation is not subject to one of several enumerated exceptions, the court may consider law enforcement's noncompliance in adjudicating any motions to suppress the statements and in determining whether the statement was involuntary or unreliable, and shall instruct the jury to view with caution the statements made in that custodial interrogation. (§ 859.5, subd. (e).)

On June 28, 2018, defense counsel filed her motions in limine, including her motion seeking to suppress defendant's confession on the ground it was the product of improper promises and therefore involuntary. Therein, defense counsel noted that section 859.5 had recently been amended to require "electronic recording of the entire custodial interrogation of any person suspected of committing murder." Counsel argued that "[t]he failure to record the statement taken at processing in its entirety ... makes the accuracy and meaning of the statement subject to question." Counsel did not specifically argue that the amendments to section 859.5 applied retroactively, or that the confession should, accordingly, be suppressed.

B. Law Regarding Retroactivity

"Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent." ( People v. Brown (2012) 54 Cal.4th 314, 319, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ( Brown ).) In determining legislative intent, " ‘ "[w]e begin by examining the statute's words, giving them a plain and commonsense meaning." ’ " ( People v. Scott (2014) 58 Cal.4th 1415, 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827 ; accord, People v. Buycks (2018) 5 Cal.5th 857, 879-880, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ).) "But the statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme." ( Buycks , at p. 880,236 Cal.Rptr.3d , 422 P.3d 531 ; accord, People v. Gonzalez (2017) 2 Cal.5th 1138, 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074.) " ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ " ( Gonzalez , at p. 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074.) We presume the Legislature, in enacting a statute, "was aware of existing related laws and intended to maintain a consistent body of rules." ( People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199, 96 Cal.Rptr.2d 463, 999 P.2d 686.)

"No part of the Penal Code ‘is retroactive, unless expressly so declared.’ (§ 3.) ‘[T]he language of section 3 erects a strong presumption of prospective operation, codifying the principle that, "in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the [lawmakers] ... must have intended a retroactive application." [Citations.] Accordingly, " ‘a statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective.’ " ’ " ( Buycks, supra , 5 Cal.5th at p. 880, 236 Cal.Rptr.3d 84, 422 P.3d 531.)

Despite the foregoing, a "limited rule of retroactivity" applies to newly enacted criminal statutes that are intended to ameliorate criminal punishment. ( Buycks, supra , 5 Cal.5th at p. 881, 236 Cal.Rptr.3d 84, 422 P.3d 531 [discussing In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ) ].) "The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( Buycks , at p. 881, 236 Cal.Rptr.3d 84, 422 P.3d 531.)

C. Analysis

Defendant concedes "[s]ection 859.5 does not expressly state that its provisions apply retroactively" and that the legislative history of section 859.5 does not clearly indicate the Legislature intended for the amendments to have retroactive application. Defendant further concedes the amendments to section 859.5 do not reduce punishment for a class of crimes. Nonetheless, he contends Estrada, supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 applies because the amendments to section 859.5 provide a clear and significant benefit to defendants.

Our Supreme Court articulated the reasoning behind the Estrada rule as follows:

"When the Legislature amends a statute so as to lessen the

punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." ( Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

Recently, our Supreme Court revisited the Estrada rule. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ), our high court concluded a prohibition in Proposition 57 (the Public Safety and Rehabilitation Act of 2016) against direct charging of juveniles in adult court applied retroactively. The court noted that Estrada was not "directly on point" because Proposition 57 reduced punishment for a class of persons, rather than for a crime. ( Lara, supra , at pp. 303-304, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Nonetheless, the court concluded, the electorate's apparent determination that the former system of direct filing was too severe created an inference that the ameliorative benefits of Proposition 57 were intended to extend as broadly as possible. ( Lara, supra , at pp. 309-310, 228 Cal.Rptr.3d 394, 410 P.3d 22 [adopting the reasoning of People v. Vela (2017) 11 Cal.App.5th 68, 80, 218 Cal.Rptr.3d 1 (judg. vacated and cause remanded, reaffd. (2018) 21 Cal.App.5th 1099, 230 Cal.Rptr.3d 880 ) ].) Similarly, in People v. Frahs (2020) 9 Cal.5th 618, 624-625, 264 Cal.Rptr.3d 292, 466 P.3d 844, our high court concluded that a statute that created a pretrial diversion program for certain offenders with mental health disorders applied retroactively. Like in Lara , the statute could result " ‘in dramatically different and more lenient treatment’ " for a class of offenders, and contained no express savings clause limiting the program to prospective-only application. ( Id. at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.)

However, our high court has declined to extend the reach of Estrada to legislative action that does not alter or reduce criminal punishment or treatment for past criminal conduct. For example, in Brown, supra , 54 Cal.4th at pages 317 through 318, 142 Cal.Rptr.3d 824, 278 P.3d 1182, the court rejected the applicability of Estrada to a statute that increased the rate at which local prisoners could earn conduct credits. The court explained:

"The holding in Estrada was founded on the premise that ‘ "[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law" ’ [citation] and the corollary inference that the Legislature intended the lesser penalty to apply to crimes already committed. In contrast, a statute increasing the rate at which

prisoners may earn credits for good behavior does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent. [The statute at issue] does not alter the penalty for any crime; a prisoner who earns no conduct credits serves the full sentence originally imposed. Instead of addressing punishment for past criminal conduct, the statute addresses future conduct in a custodial setting by providing increased incentives for good behavior." ( Brown , at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d 1182, fn. & italics omitted.)

Ultimately, the applicability of the Estrada rule to a particular legislative change depends on whether the statute at issue is " ‘analogous’ to the Estrada situation" and whether the logic of Estrada applies. ( Lara, supra , 4 Cal.5th at pp. 311-312, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

The 2017 amendments to section 859.5 are not analogous to the statute at issue in Estrada. To the contrary, their effect is to impose requirements on certain interrogations, and to circumscribe the admissibility of those statements if those requirements are not met or excused. In certain instances, the amendments may result in the suppression of statements that are damaging to the defense. In others, they may result in the introduction of a recorded statement that undermines any attempt to sow doubt regarding the credibility of an officer's account of an interrogation. (Stats. 2016, ch. 791, § 1, subd. (b) ["Properly recorded interrogations ... prevent disputes about how an officer conducted himself or herself or treated a suspect during the course of an interrogation, [and] prevent a defendant from lying about the account of events he or she originally provided to law enforcement ...."].) The amendments do not, however, alter the substantive requirements for conviction, nor affect the available punishments in the event of conviction. They do not alter or reduce criminal punishment or treatment. Nor does the logic of Estrada apply here. Estrada held that a statutory change that ameliorates punishment is presumed to apply retroactively because it reflects a legislative determination that the former punishment was too severe and that a lighter punishment is adequate. ( Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) In amending section 859.5, the Legislature stated: "Properly recorded interrogations provide the best evidence of the communications that occurred during an interrogation, prevent disputes about how an officer conducted himself or herself or treated a suspect during the course of an interrogation, prevent a defendant from lying about the account of events he or she originally provided to law enforcement, and spare judges and jurors the time necessary and the need to assess which account of an interrogation to believe." (Stats. 2016, ch. 791, § 1, subd. (b).) Contrary to defendant's assertion, the amendments were not designed to provide a clear and significant benefit to defendants; they were designed to reduce biased interpretation of, and ensure the accuracy of the evidence of, the communication that occurs in an interrogation.

Under the strong presumption of prospective application set out in section 3, and in the absence of any indication the Legislature intended the amendments to apply retroactively, we construe the 2017 amendments to section 859.5 to apply only prospectively. (§ 3; accord, Buycks, supra , 5 Cal.5th at p. 880, 236 Cal.Rptr.3d 84, 422 P.3d 531.)

II.-IV.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

LEVY, Acting P.J.

FRANSON, J.