davis did not raise the issue in the california court or the district court concerning his right to a jury trial on the priors but i'd like to indicate that is incorrect but the supplemental excerpts of record page themselves convictions are invalid he did not properly waive his right to a jury because he was never informed that once the trial judge dismissed supreme court got there for a way with a jury trial has to be knowing voluntarily done and waving a right it's a state law right but still to waive that right for it to be knowing involuntary and intelligent your slogan apply federal constitutional law as to whether or not there was a waiver of that state court right so it's our position that under federal law which is clearly established that there must be no intelligent voluntary waiver of that right and here there wasn't because he was not advise encompasses only those proceeded proceedings that provide to fit in with procedural safeguards of a jury trial proof of guilt beyond a reasonable doubt he was not afforded the right to a jury trial on the issue of using the strike or ascribes or may not have had a duty of disclosure but the fact that they did go ahead and say this is only going to be used as one conviction for future sentencing purposes i believe that binds them then and it works for my however again i believe exam videos just to hear what the government is telling a defendant who really doesn't have the training they're saying basically we're treating i mean we're treating this as being one conviction so under the law is it didn't exist or did the number of prior convictions matter if the person committed a future crime well that six forty six forty seven talks about the prior difference whether it was one prior or more than one could have yes i believe so and i think that my  case were basically saying well what's going to happen in the future with with yes and they were told what this will be considered a strong conviction and i think that because it's ambiguous my client should receive the benefit of the doubt on that time of the earlier plea colloquy there was a different treatment of one prior conviction versus more than one prior conviction in the event of a later crime absolutely under six six seven that was the five year prior and under sixty seven no matter how many convictions you had you get a five year enhancement that is long is that you get a five year enhancement for every conviction tha pled improving so for that five year and a half which still exists today you get a five year hasnat three strikes law was and the fact that you know i understand that but it let's just i just want to be sure i understand the state of california a lot at the time so here's my concern about it and i understand that the three strikes law wasn't there but it didn't matter to the defendant whether it was counted as one or more than one and the prosecutor said in response to some questions of the court it would be one prior for all purposes and then when addressing the defendant  prosecutor says it will be one five year prior on your record do you understand that but not to understand that mr davis answer yes knowing that you still wish to plead guilty answer yes so it seems be it has the feel that it mattered to the defendant that he was only going to have one prior on his record for the purposes of the law as it then existed and i guess the question as to what extent that should or should not carry forward when the laws are changed is the effect of the priors but there was some effect of  transcript what actually happened here was the prosecutor was correctly telling both defendants because this was a codefendant case here's how these priors will affect us a lot is now in the future these can only be used do i know i just know six six seven is the five year prior announcement and the prosecutor at the time didn't say six six seven but what he was doing is he was explaining to the defendant as to the state of the law that time here's how it would affect he's also measuring the representation to the court directly it will be one prior for all purposes which is a credit representation of what the state of the law was at that time well facto in terms of once the law changes as long as the subsequent conviction occurs after the three strikes law takes place that those prior convictions that occurred before the three strikes law can be used to enhance the sentence even if  agreement to the contrary exists well you know i believe that that's an incorrect characterization of this interview you know played it with the will that there was a plea agreement if we assume that he made a promise that you'll never be able to  the only thing that could ever possibly happen to you is you would give one five year enhancement on this case if the words for all purposes equate to that promise then would a change in the law of negate that  promise i don't believe so i mean essentially what you have here is you have i mean let's look at this realistically what you have here is a prosecutor doing what prosecutors should do which is telling them this is the state of the law for you to come  that would be an explanation of the state of the law but to say to the court it will be one count of just one prior conviction for all purposes and then to ask if if knowing that the defendant is willing to plead guilty on that  basis i just it seems to me at least that that has more of a promissory character it's a little bit like except a guilty plea on one count and dismissing three others part of dismissing them is that they will not be prior convictions because they will be dismissed and no change in the law refinance those and that's and that's my concern is this is like that analogous to that where the right to rely on those priors given up as a matter of contract state in ca i think under the circumstances in which the exchange was given then that was not part of the plea agreement any more than if the judge had looked at  mr davis and said mr davis do you understand that this was just one five year prior to you wonder six six seven and he would have said yes under those circumstances i don't know how you possibly could say well that was part of the agreement and that's why i think that that's not what it's that's not what was said in this case the problem is that the words that were used were march more expansive at least they can be read to be much more expansive well what was that in this case was ok i'm not saying that the d a said this is the state of the law right now i'm saying the da told mr williams and this juror right they this that this is how it applies and i certainly priors that were committed prior to the three strikes law going into a fax actually not in your precinct and i'd appreciate it if you if the clerk afterwards the citation and two o but so in my mind to put the burden on the da to have to say rather then here's how it works to say here's how it works but if the law changes it could work differently in all sorts of things could happen i think is an unreasonable hargate to just say the law the law provides that this will be one strike i mean rather than thinking you know for all times it will be treated as one strike that's a different representation that this is just articulating what the mop of ok i think it's a good time i think in essence that's what he did say he was using the laws of was at the time and to put the burden on him to say this is the law as it presently is and somehow anticipating there could be a change in the law i think it's an unreasonable target for all purposes it might be a little different and i know it's easy in hindsight to look back but that's what we have to do well and at the time it was one five year prior for all purposes that was the state of the law of the time and i don't think you can read that as some sort of independent promise that was part of a plea bargain when you're appearing at sentencing and the that's that's where the bargain comes and it seems to me because the way the case had been laid out of the time i think there were two separate informations if i'm remembering this for akeley and so it is possible that had the state elected a different method of going forward it could have been counted as two priors and stead of one and so that's what makes it margin like or up in exchange for something presumably the guilty plea well the way the plea was taken was such that it was a deceptively pled proven so therefore the plea itself at that time then that it would only be one five year process right but that was part of the bargain because the state could have done something different and gotten it to be more than one prior yes i guess i don't see it as part of the bargain because once the play goes down the way that it does it is one five year prior so i don't know had discussed that ahead of time the certainly the comments made by the prosecutor was pertaining to the way the plea was happening at that point and that it would only be something i fleshed under if this was crystal clear that it could only be one prior why was there a question williams was eleven or something like that there were a whole bunch i don't remember well that was nine and then actually the court and the subsequent case found eight of them to be true and then mr williams said what do you mean by that and he explained it so i don't really think that can take it to mean that there was some sort of negotiation going on the d a was trying to be conscientious and tell them here's what will happen to you in the future and the same way that a judge with the same way that i'm sure the know he didn't raise that in a court of appeal and then when he raised it in front of the california supreme court it was a silent denial yes that's true and i see that my time is up but yes a lot of questions if you have a couple of sentences to sum up i do in you know one thing that i never got to is i think in terms of the timeliness of the appeal the whole jurisdictional issue i think you know the issue of whether the mailbox rule should be applied to this and how and i that's a question of fact it has never been decided that district court and should have been decided the district court should be remanded and then lastly as to the last issue if you look at this the statements in both the federal appeal the federal petition and the petition to the california supreme court to suggest that he has raised the issue raised the issue that his waiver of jury trial on the prior convictions somehow violated his rights i think it is just overly construes that and in fact the district court certainly the magistrate or the district court in a jar put it that way because they concluded no he waived that right and and so for them to bring up now the idea that you know this waiver was improper because the jury was dismissed first that's an issue that's never been raised in any court this one and i think it's on proper and proper for that basis thank in the record for this court's deemed to be timely both because the only evidence for the court shows that it was presented to the prison officials in a timely manner and to the search with he still even after it does talk about the prisoner turning it over but i don't believe the gist of it is whether or not it's given whether it's physically given by the prisoner or the prisoner asking somebody do it the gist of it is you know whether whether he can serve him self or not service a process is deep deemed to be done by the person who does the process whether it's the person himself is allowed and can do it or if he has an agent of for service process to do  it i don't think that the government can test it by saying that if somebody other acts as an agent but that's not permissible and i believe that the government even conceded that if it was given to the government  jury trial and since the government never contends that my analysis is wrong concerning the issue of whether or not there was a proper waiver of that jury trial their whole issue is whether or not it