What is the test for establishing a pattern of criminal activity in a murder case?

Respondent's supplemental reply brief argues that the circumstances of the charged incident were enough to establish a pattern of criminal activity. Respondent cites People v. Loeun (1997) 17 Cal.4th 1 (Loeun) for the proposition that the prosecution can establish the requisite pattern exclusively through evidence of crimes committed contemporaneously with the charged incident. (Id. at p. 10.) Respondent points out that the gunfire that killed the victim was fired from a car. As a result, respondent contends, the offense of discharging a firearm from a motor vehicle ( 12034, subds. (a) & (b)) was committed, which is an offense that qualifies as a predicate offense under section 186.22, subdivision (e)(6). In addition, the car from which the shots were fired had at least two occupants the driver and the shooter. Thus, appellant's conviction for murder is one predicate offense ( 186.22, subd. (e)(3)), and the offense of discharging a firearm from a motor vehicle qualifies as the second predicate offense. Therefore, two predicate offenses were committed by two or more people during the charged incident, and a pattern of criminal gang activity was established.

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