In what circumstances will a jury at a retrial of a man convicted of a charge of second-degree murder not guilty of the same charge after the trial ended in a hung jury?

In People v. Soojian (2010) 190 Cal.App.4th 491, 520, 118 Cal.Rptr.3d 435, the court noted that some courts "have found it persuasive that the first trial ended in a hung jury when deciding whether the error that occurred in the retrial was prejudicial. [Citations.]" Here, the jury indicated to the trial court that it was deadlocked, with a four to eight split (without indicating which group was in favor of conviction), so at least four jurors, and perhaps eight, voted to find defendant not guilty of the murder charge.

Furthermore, although there is no dispute that the evidence was sufficient to support the murder conviction, it was not "overwhelming," as the People would have it. A finding of implied malice "depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296297, 300-301, 179 Cal.Rptr. 43, 637 P.2d 279.) In this case, although the evidence that defendant actually appreciated the risk involved was substantial, it was also largely circumstantial and in significant part rested on inference of defendant's pre-collision state of mind from post-collision behavior. The jury reasonably could have found defendant did not act with implied malice, even if he appreciated the gravity of his actions immediately after the collision, and even though he should have known better from his past experience.