In what circumstances have defendants not challenged the authority of the court as opposed to the jury to make a factual determination in a Penal Code section 654 case?

5 Nor do we place any weight on the footnote in People v. Raby (1986) 179 Cal.App.3d 577, 582, fn. 1, 224 Cal.Rptr. 576, also relied upon by defendants, wherein the court observed: "Curiously, so far as we are aware, no one has ever challenged the authority of the court, as opposed to the jury, to make this factual determination in ... Penal code section 654 situations." It is unclear whether the court thought the failure to challenge "curious" because it may have merit or because it is unusual for the defense bar to long leave any stone unturned. In any event, the court did not seriously address the issue.

** See footnote *, ante.