Can a jury be instructed on the consequences of failing to reach a unanimous verdict in the second degree?

As defendant acknowledges, we held in an analogous context (involving guilt phase instructions) that a jury should not be instructed on the consequences of its failure to reach a unanimous verdict. In People v. Dixon (1979) 24 Cal.3d 43, 154 Cal.Rptr. 236, 592 P.2d 752, the defendant was tried for murder. During deliberations the jury asked the court whether, if it agreed the crime was murder but could not agree it was first degree, any verdict of second degree would have to be unanimous. The court answered yes, and the jury ultimately returned a first degree verdict. On appeal the defendant asserted that the court (i) misstated the law and (ii) should have told the jury that a failure to agree on a first [749 P.2d 823] degree verdict would automatically result in a second degree finding. We rejected the first contention, holding that in these circumstances a second degree verdict must be unanimous. In dismissing the second contention we observed, inter alia, that "it contemplates an instruction which would constitute an open invitation to a juror favoring the lesser degree to have his way by simply adhering to his opinion in spite of any arguments which might be raised by his fellow jurors against it." (Id., at p. 53, 154 Cal.Rptr. 236, 592 P.2d 752.)