What is the test for determining whether a defendant has committed more than three acts of substantial sexual conduct or lewd and lascivious conduct?

^4. "'The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction in Count I may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three such acts.'" (People v. Owens, supra, 27 Cal.App.4th at p. 1158, italics added.)

^5. Of course a court may not instruct the jury the same evidence creates a presumption that the fact to be inferred has been established. (People v. Roder (1983) 33 Cal.3d 491, 504-505.)

^6. Although we find the court did not err in instructing the jury pursuant to the modified version of CALCRIM No. 3131, we reject respondent's characterization of the instruction. The court did not instruct the jury defendant was personally armed with a firearm while possessing drugs for sale. Had the court done so, it would have denied defendant due process of law. (People v. Flood (1998) 18 Cal.4th 470, 502-503.)