CALJIC 4.31 - Interpretation
People v. Williams (1971) 22 Cal.App.3d 34, dealt with the pre-1972 version of CALJIC No. 4.31. (Williams, supra, 22 Cal.App.3d at p. 57 holding the prior version required a finding of fact, as opposed to establishing a rebuttable presumption as to which the defendant could simply to raise a reasonable doubt as to consciousness.)
Further, the Williams court concluded that the trial court should have instructed the jury with language similar to the language the court used in this case:
"The court should have composed an instruction that informed the jurors that if they found beyond a reasonable doubt that defendant acted as if he were conscious, a rebuttable presumption arose that he was conscious, as to which defendant had the burden of raising a reasonable doubt." (Williams, supra, 22 Cal.App.3d at p. 57.)
The Williams court's issue with the instruction was the fact that the instruction required the jury to make a "conclusive finding of fact" with regard to consciousness, rather than simply consider the existence of a "disputable presumption."