proof in this case and require the defendant to not only prove the nonexistence of the waiver but also to prove that the waiver was invalid there's been no one circuit case that meaning that they have to demonstrate that if there is a waiver within the record in all of those cases there was a waiver and also for the defense conceded that there was a waiver that has yes that then show that it was in knowing and it was it was an invalid waiver it wasn't knowing involuntary now the it was there was a waiver there was a waiver of appeal then with that is a little different but when you're talking about a prior case in which the government wasn't even involved who's in a fast position to be able to produce evidence the burden of production of evidence on that fact a waiver but the defense the government would be in just as good as a position as the defense to show the existence of a waiver because it's a public record and as we have seen and probation has shown that he would not have wait when did this happen when did this event happen that he was convicted he was convicted in one thousand nine hundred eighty nine hundred ninety eight you know like or he was in san diego municipal court without a lawyer without the record demonstrates that the only record days jail and five years probation that's it that's the only record that has been presented and myself his submission is i don't remember any of his he testified subject to cross examination by under oath indicating he had no recollection of the entire and that he couldn't even remember what offense you committed they got him into court on that day he could remember whether or not he had an attorney one that he remembers that he didn't have an attorney could remember whether he did dungeon and what about the information and then them about the regular practices of a court in terms well if that's the regular practices of the court and they regularly keep these record it should have been available and in this case it wasn't available so i think that you can can presume from from corporations report that that there was a waiver i don't think that you can do that and the reason why is because we can view alabama and also johnson these are demonstrate that there should be every presumption against a waive not you can waive that but it's not a question of raising a presumption it's a question of proving that that was the custom and practice of the courts from which you can conclude there was a waiver is not the situation well  ground upon which we sustain we can sustain and we should sustain no i don't believe that that is the case even even if you were going to assume that this this is the practice you have to presume every presumption against the waiver and there's there's a number of reasons why attorney you know court this was from a number of years ago this was at a rainy iran or as well for somebody who grew up in mexico and these proceedings are done very quickly not recalling something from five years ago i don't think i unreasonable he was subject to cross examination by the government saying the evidence against her being a waiver is so preponderant that it would be an error of law to rely on the pre sentence reports evidence of custom and practice to e with the waiver custom and practice and california law if it's the first issue that i have is is whether the government has the burden of proof and in showing that there is a waiver now if your honor is going to use the fact that the attendant as proof that the government has as