In what circumstances will a court overturn a conviction for an attempted murder where a mother and baby were within the line of fire?

In People v. Smith, the court upheld the defendant's conviction for two counts of attempted murder where he shot one bullet into a car and a mother and her baby were within the line of fire, but missed both by inches. The court upheld the convictions based on evidence of the defendant's animosity toward the mother and the baby's father to support a finding of his intent to kill both the mother and baby, but found that a kill zone theory did not apply to show the defendant intended to kill the mother by killing both of them with a single bullet. (People v. Smith, supra, 37 Cal.4th at pp. 746-747.)

The court held that the defendant's argument that the attempted murder conviction for the baby must be reversed absent evidence of a kill zone is "founded on the incorrect assumption that all single-bullet cases involving more than one attempted murder victim must be analyzed under a kill zone rationale. And it is further founded on the incorrect assumption that a shooter who fires a single bullet at two victims who are both, one behind the other, directly in his line of fire, cannot, as a matter of law, be found to have acted with express malice toward both victims." (People v. Smith, supra, 37 Cal.4th at p. 746.)

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