What is the test for permissive inference in a murder trial?

"A permissive inference instruction allows, but does not require, a jury to infer a specified conclusion if the government proves certain predicate facts." Warren , 25 F.3d at 89798 (addressing the instruction "If it is shown that the defendant used a deadly weapon ..., then you may find, ... the existence of the malice"). Such an instruction violates due process if it suggests a conclusion that "is not one that reason and common sense justify in light of the proven facts before the jury." Id. at 897 ; see also United States v. Rubio-Villareal , 967 F.2d 294, 296 (9th Cir. 1992) (en banc) ("A permissive inference is constitutional so long as it can be said with substantial assurance that the inferred fact is more likely than not to

[889 F.3d 1058]