Can a substantial evidence hearing be conducted by a judge rather than a jury?

In ruling that defendants have not waived their right to a substantial evidence hearing, we have assumed that section 7031, subdivision (e) requires resolution of the issue by a judge, rather than jury. That appears to have been defendants' assumption in seeking such a hearing from the trial court. Rather than rely on an unexamined assumption, however, we asked the parties for supplemental briefing regarding the nature of the hearing to be conducted on remand.²³ Reviewing the issue de novo (Hopkins v.

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