With reluctance I concur in the judgment for reversal. The reasons for my reluctance, and my concurrence, I explain below.
I agree with Justice Broussard’s plurality opinion that the defendant should be deemed to have established a prima facie case that he was deprived of his right under federal and state Constitutions to a trial by an impartial jury drawn from a fair cross-section of the community. As the dissenters observe, there are gaps in defendant’s statistical showing; but given the differences in resources available to a defendant and the state, and in light of published studies which point to the exclusive reliance upon voter registration lists as a likely source of racial and ethnic disparity in the composition of juries, I am prepared to say that defendant’s showing should be regarded as sufficient to trigger further inquiry.1 It is about time, I think, that the problem be squarely confronted.
Were it up to me, however, I would not reverse the judgment on that account. In the trial court, both parties were operating without clear appellate guidance as to the applicable ground rules. Relying upon the trial court’s determination that defendant’s statistics failed to establish a prima facie case, the People presented no rebuttal evidence. I believe that consid*72erations of fairness and judicial economy require that it should now have opportunity to do so. Rather than permit defendant’s conviction to disappear in a factual vacuum, this court, on the authority of Penal Code section 1260,2 should remand for further evidentiary proceedings. Upon full consideration of relevant evidence it might be concluded that “no disparity of constitutional significance exists,” or that “even with the use of multiple sources and all other practical means, a certain level of disparity is unavoidable,” or that the underrepresentation which does exist is justified by a showing of overriding state interest. (Plurality opn., ante, p. 59.) In any of those events, the conviction could be affirmed without the necessity of further proceedings.3
If I were to insist upon the disposition I prefer, however, there would be no judgment of this court, since all three proposed dispositions are mutually exclusive and none would be supported by four justices. That, obviously, is an intolerable result. Since my view of the case is fundamentally incompatible with the disposition proposed by the dissent, I reluctantly join in the reversal of the judgment below.4
I do not agree with all of the reasoning in the opinion on this point. In my view, a defendant who challenges jury selection procedures on the basis of population statistics can at least be expected to refine those statistics on the basis of readily available census information reflecting the relative percentages of majority and minority populations over the age of 18. It does not appear, however, that consideration of such data would be fatal to defendant’s prima facie case. According to 1970 census data figures, for example, the percentage of blacks in the over-18 population (9.4 percent) was only slightly less than the percentage of blacks in the population as a whole (10.8 percent). (1970 Census of Population, vol. 1, Characteristics of the Population, ch. B, General Population Characteristics (PC70-1-B6.) There may be merit also in the dissenters’ view that the more appropriate focus for statistical analysis is the area within a 20-mile radius from the Long Beach courthouse, but the People did not challenge the statistics on that ground and this court has been presented with no basis for taking judicial notice of the geographical distribution of racial and ethnic populations within Los Angeles County. If my view as to the appropriate disposition were to prevail (infra) that would be a matter of inquiry upon remand.
Section 1260 provides: “The court may reverse, affirm, or modify a judgment or order appealed from . . . and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” “[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand.” (People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405 [132 Cal.Rptr. 30]; People v. Minor (1980) 104 Cal.App.3d 194, 200 [163 Cal.Rptr. 501]; see also People v. Brooks (1980) 26 Cal.3d 471, 493 [162 Cal.Rptr. 177, 605 P.2d 1306].)
It does not appear that there exists any reversible error in the guilt phase of defendant’s trial. I express no opinion as to whether there might be reversible error in the penalty phase.
See Screws v. United States (1945) 325 U.S. 91, 134 [89 L.Ed. 1495, 1520, 65 S.Ct. 1031, 162 A.L.R. 1330]. Justice Rutledge, after setting forth his views favoring affirmance of the conviction, stated: “My convictions are as I have stated them. Were it possible for me to adhere to them in my vote, and for the Court at the same time to dispose of the cause, I would act accordingly. The Court, however, is divided in opinion. If each member accords his vote to his belief, the case cannot have disposition. Stalemate should not prevail for any reason, however compelling, in a criminal cause or, if avoidable, in any other. My views concerning appropriate disposition are more nearly in accord with those stated by Mr. Justice Douglas, in which three other members of the Court concur, than they are with the views of my dissenting brethren who favor outright reversal. Accordingly, in order that disposition may be made of this case, my vote has been cast to reverse the decision of the Court of Appeals and remand the cause to the District Court for further proceedings in accordance with the disposition required by the opinion of Mr. Justice Douglas.”