I concur in the opinion of the court. However, I cannot join in the arbitrary limit of today’s holding to appellant and “to the defendant in People v. Box, Crim. 22818, still pending before this court.” (Maj. opn., ante, at p. 654, fn. 6 and accompanying text.) All individuals whose convictions are not yet final on appeal should be given the benefit of this holding.
“[T]he threshold inquiry in determining whether a decision should be given retroactive effect is whether it establishes a new rule. ‘If it does, [courts] proceed to test whether the new rule is retroactive. If it does not, no such testing is necessary and, by definition, without a new rule, there is no change in the law and the question of retroactivity is immaterial. . . . [T]o constitute a new rule, the decision must either (1) overrule clear past precedent or (2) disrupt a practice long accepted and widely relied upon.’” (People v. Jones (1980) 108 Cal.App.3d 9, 16 [166 Cal.Rptr. 131], quoting United States v. Bowen (9th Cir. 1974) 500 F.2d 960, 975.) Thus, where *655this court resolves a conflict between lower court decisions or addresses an issue not previously presented to the courts, the ordinary assumption of retrospective operation applies. Even when this court overrules one of its prior decisions, the new holding is normally given retroactive effect. (See, e.g., Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 953-954 [148 Cal.Rptr. 379, 582 P.2d 970]; County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680-681 [312 P.2d 680].)
This case involves an interpretation of a statute prescribing the number of peremptory challenges allowed in criminal cases. (Pen. Code, § 1070.) As the majority admit, “ [defendants charged with murder have been permitted additional peremptory challenges since at least 1872, and there is no evidence that the 1978 [death penalty] initiative was intended to change the law in that respect.” (Maj. opn., ante, at p. 647.) Given this reasoning, it is difficult to understand how this court can refrain from applying today’s decision to other convictions under review by our lower courts.
The main reason asserted by the majority for refusing to grant retroactivity is that “[i]n the years since [the] 1978 [initiative], vast resources have been expended in trying defendants charged with murder, and the retrial of guilt and innocence in even a substantial fraction of those cases would impose a great burden on the administration of justice.” (Maj. opn., ante, at pp. 653-654.) However, a careful analysis of the facts indicates that the impact of this holding on the criminal justice system is overstated. Very few murder trials since 1978 will require a reversal on these grounds.
First, most murder cases are settled by plea, not by trial. Clearly, no individual who waived his right to trial will have preserved for appeal the issue of the right to 26 peremptory challenges. Second, even as to those murder cases that have gone to trial since 1978, some defendants were acquitted, others declined to appeal, and most convictions that were appealed have long since become final. Moreover, many of the convictions not yet final involved special circumstance allegations. In light of the exposure to a minimum sentence of life imprisonment without the possibility of parole, the individuals on trial in those cases undoubtedly were afforded 26 challenges.
Even as to noncapital murder trials where the conviction is not yet final, we have no indication as to how often the accused made a motion for 26 challenges, nor how often such a motion might have been granted. Finally, even if the motion were denied, we have no idea as to whether the accused actually used most or all of the 10 challenges which he was given.
In short, it is unlikely that application of today’s decision to all cases which are not final would impose any “great burden on the administration of justice.”
*656Apart from overstating the impact of this court’s decision on past murder trials, the majority’s modified “prospective only” rule draws an unusually arbitrary distinction among similarly situated cases. The majority give the benefit of our holding to appellant Yates and to “the defendant in People v. Box, Crim. 22818,” but not to those whose cases are pending before the Courts of Appeal. (See maj. opn., ante, at p. 654, fn. 6.)
The upshot of this holding is that if a Court of Appeal has refrained from deciding an appeal until this court issued today’s decision, that appellant will not get the benefit of our ruling. However, since the Court of Appeal decided Box and this court granted a petition for hearing at the same time it granted hearing here, that appellant may rely on today’s decision. This distinction seems to border on the irrational.
If this court follows past practice, Box will be transferred to the Court of Appeal for reconsideration in light of today’s decision. Appellant in that case will be entitled to argue for a reversal in the Court of Appeal in light of today’s holding, but all other similarly situated appellants before that court will be prohibited from doing so.
I recognize that any decision of this court that is not given full retroactive effect can be criticized to some extent as drawing arbitrary lines between similar cases and individuals. However, the current ruling on retroactivity seems to be a quantum leap beyond any of this court’s prior delineations. Since it is unnecessary to protect any legitimate interest of the state, I cannot subscribe to it.