Does the acquittal first rule apply to a jury in a second-degree murder case?

Defendant's trial counsel asked the court to instruct on CALJIC No. 17.10, which describes this so-called acquittal first rule. Defendant now complains, however, that the rule creates an intolerable risk that a juror may acquiesce to a first degree murder conviction. The hypothesized juror may believe that a defendant is guilty of second degree murder. But, the hypothesis continues, a juror may perceive that fellow jurors will be unwilling to acquit of first degree murder, and thus feel pressured to convict of that offense rather than causing a mistrial. (Cf. United States v. Tsanas (2d Cir. 1978) 572 F.2d 340 ["If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge"].) A guilty verdict on second degree murder, with a mistrial on first degree murder, is not an option; "the court cannot accept a guilty verdict on a lesser crime" unless the jury has "unanimously found the defendant not guilty of the [charged] [greater] crime." ( CALJIC No. 17.10.)⁷