I agree the judgment should be affirmed. I limit my concurrence to the result only for the following reasons.
My initial concern is with the majority’s willingness to transmute the trial court’s conditional withdrawal of the first degree murder charge from the jury into “a form of dismissal authorized by Penal Code section 1385.” (Maj. opn., ante, p. 581, fn. omitted.) Whatever label may be given to the court’s action, it cannot be properly characterized as a dismissal under section 1385.
Penal Code section section 1385 is based on trial court discretion. Before deciding dismissal is appropriate, the court must carefully evaluate the circumstances weighing the defendant’s interests against those of society. (People v. Orín (1975) 13 Cal.3d 937, 945 [120 Cal.Rptr. 65, 533 P.2d 193].) Clearly that did not happen here where the court contemplated its action would permit the first degree murder charge to be retried if the jury could not reach a verdict on second degree murder. (Maj. opn. ante, p. 578.) Moreover, a dismissal under section 1385 is invalid unless the court complies with the statutory mandate of stating reasons for the dismissal in an order entered upon the minutes. (See Maj. opn. ante, p. 581, fn. 3.) “It is settled law that this provision is mandatory and not merely directory .... [Where] ‘the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385 [citations].’ ” (People v. Orin, supra, at p. 944, quoting People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503, fn. 7 [72 Cal.Rptr. 330, 446 P.2d 138].)
The significance of bootstrapping Penal Code section 1385 into this case is the majority then rely on that provision to eliminate a defendant’s right to the procedure provided by Penal Code section 1140. Section 1140 states in part that “the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court ... or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” The majority’s statement that “any asserted right to a mistrial under section 1140 does not impair the right of a trial court to dismiss a charge under section 1385” (maj. opn., ante, p. 582), would appear to nullify the former provision authorizing a court to dismiss any charge, including lesser included offenses, during jury deliberations. The *585notion that the court has the power to simplify the jury’s task by dismissing lesser included offenses before the jury reaches a verdict on any offense is rather startling and, at least in my view, contrary to both the People’s and defendant’s respective rights to a jury verdict free from judicial interference.
The theme emanating from the majority’s leap from an inadvertent implied acquittal to a Penal Code section 1385 dismissal is that trials can be expedited when judges dismiss charges that may be delaying jury deliberations. Unfortunately, this desire for efficiency is contrary to the People’s right to a jury decision on what offenses, if any, the defendant committed and the defendant’s right to a fair trial.
In addition to the foregoing I am also concerned with the majority’s conclusion the court’s action placed Bordeaux in jeopardy. Whether Bordeaux could have challenged a retrial on first degree murder on the basis of double jeopardy is not before us in light of the jury’s verdict finding her guilty of second degree murder.
Whether the jury was discharged is also open to serious question. (Maj. opn., ante, p. 581.) Although the jury was told it could render a verdict on second degree murder the jury was not discharged until after reaching that verdict.
Finally, if the majority believes the issue of double jeopardy is essential to its decision the People should have been given the opportunity to brief that issue. (Gov. Code, § 68081.) Supplemental briefing here is required not merely because of a technical statutory requirement but because of what I believe is the scope of the majority’s holding. Pursuant to the majority opinion had the jury been unable to decide any lesser included offense the People would have been unable to retry Bordeaux on the first degree murder charge. Although double jeopardy might be a defense in such circumstances arguably Bordeaux or similarly situated defendants are in no worse position than had the greater charge(s) not been removed from the jury’s consideration. Because I think the majority decision on double jeopardy will have significant precedential effect, it is unfair to deprive counsel from participating in the process through which that decision is reached.
Having expressed my disagreement with substantial parts of the majority decision let me briefly explain why I concur in the result.
In the unexpurgated version of this opinion the unpublished facts show the question for the jury to decide was whether Bordeaux intentionally killed the victim or did the gun accidentally go off when Bordeaux was defending herself against the victim. The jury was deadlocked 11-1 for convicting Bordeaux of first degree murder when that charge was removed *586from its consideration and it was told it could render a verdict on a lesser included offense. There is not the slightest suggestion in this record the hold out juror was voting for acquittal. In these circumstances the court’s action was not coercive. I therefore concur in the result.
Appellant’s petition for review by the Supreme Court was denied December 13, 1990.