1

Filed 11/28/23 P. v. Marman CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHON MARMAN,

Defendant and Appellant.

 A164642

 (San Francisco

 City & County Super. Ct. 

 No. 20010198)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING

 [NO CHANGE IN JUDGMENT]

THE COURT*:

It is ordered that the unpublished opinion filed herein on November 13, 

2023, be modified as follows:

On page 6, the last sentence of footnote 5, the words “15 years ago” are 

deleted and replaced with “within the 15 years preceding Marman’s motion to 

dismiss.” 

The petition for rehearing filed November 20, 2023, is denied. There is 

no change in the judgment.

Dated: _______________ _________________________________

* Tucher, P. J., Fujisaki, J. and Rodríguez, J. participated in the 

decision.
1

Filed 11/13/23 P. v. Marman CA1/3 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHON MARMAN,

Defendant and Appellant.

 A164642

 (San Francisco City & County 

 Super. Ct. No. 20010198)

A jury convicted Deshon Marman of several felonies, including resisting 

an officer with attempted removal of a firearm. Marman appeals. He argues 

the trial court violated his right to a speedy trial under the federal 

Constitution, and that the court committed prejudicial error by failing to give 

a mistake-of-fact jury instruction. We affirm.

BACKGROUND

The prosecution charged Marman with several felonies, including

resisting an officer with attempted removal of a weapon; resisting, 

obstructing, or delaying a peace officer with removal of a non-firearm 

weapon; threatening an executive officer; and battery with injury on a peace 

officer.

1

1 We provide an overview of the evidence offered at trial here and 

elaborate further in the discussion of Marman’s claims.
2

At trial, the parties offered the following evidence: In September 2020, 

a grocery store security guard was patrolling when she noticed Marman

hiding cheese under his shirt. He was wearing a mask, but it was not

covering his nose and mouth. She asked him to leave and escorted him 

outside. He returned, however, shouted obscenities at the guard, punched 

her in the face, and left. The guard called 911 and followed Marman for 20 

minutes while waiting for the police to arrive.

San Francisco Police Officers Talent Tang and Robert Duffield 

responded to the call in a marked police car. A few blocks from the store,

they saw the guard. She flagged them down and joined them in the police 

car; half a block later, the guard spotted Marman. Tang parked behind 

Marman and approached. Tang and Duffield were both uniformed, but they 

did not otherwise identify themselves as police officers or activate their car’s

lights or siren.

After a brief chase, Marman grabbed Tang, lifted him into the air, and

threw him to the ground. Duffield joined the fracas. Marman grabbed 

Duffield’s baton, and they struggled for control until it flew out of reach.

Marman bit Duffield’s forehead and reached for Tang’s gun. He grabbed the 

gun’s grip and tried to pull the gun from its holster. At the same time, 

Marman bit Tang’s neck hard, leaving a bleeding laceration that scarred.

Only after a bystander intervened were the officers able to subdue and arrest 

Marman. Tang’s body camera footage — admitted into evidence and played 

for the jury — was consistent with the officers’ testimony.

Marman testified he had no or poor memory of the brawl. He was 

inadvertently shot in 2014, and he had been suffering flashbacks ever since. 

A defense expert testified Marman met the criteria for a post-traumatic 

stress disorder (PTSD) diagnosis, and a person suffering from PTSD is more 
3

likely to experience a “fear response” if their brain perceives something as a 

threat. Among other things, such a response significantly impairs a person’s 

ability to think logically and control their behavior. After the response 

subsides, a person has no or poor memory of the event.

A jury convicted Marman of resisting an officer with attempted removal 

of a firearm; resisting, obstructing, or delaying a peace officer with removal of 

a non-firearm weapon; threatening an executive officer; and battery with 

injury on a peace officer. The trial court sentenced him to four years in 

prison, but suspended execution of the sentence and placed him on probation 

for two years. The court awarded presentence custody credit.

DISCUSSION

Marman contends the trial court violated his Sixth Amendment right to 

a speedy trial by denying his motion to dismiss, and that the court 

prejudicially erred by failing to give a mistake of fact jury instruction. We 

address each argument in turn.

I.

Before addressing the merits of Marman’s Sixth Amendment claim, we 

set forth the following additional background: 

Marman waited almost one year for trial. Officers arrested him on 

September 18, 2020 — in the midst of the COVID-19 pandemic — and the 

prosecution filed a felony complaint four days later. At his November 16 

arraignment, Marman did not waive time for trial, and the trial court set 

trial for January 8, 2021.

2

2 Marman remained in custody until November 18, 2020 — when the 

trial court released him on pretrial diversion. He was returned to custody on 

December 15.
4

Thereafter, the case was continued 14 times — most of which were for 

less than two weeks. For example, on January 15, 2021, the trial court

continued the trial for “good cause . . . due to exceptional and extraordinary 

circumstances, under Federal, State and Local emergency proclamations and 

in consideration of public health due to the Covid-19 pandemic.” On July 30, 

the court continued the trial to November and renewed its good cause finding. 

The court added, “on June 18th we opened up all trial courtrooms due to the 

lifting of the social distancing requirement which previously prevented use of 

those courtrooms for jury trial. . . . [¶] We currently have 382 felony no time 

waiver trials with 196 defendants in custody and another 149 misdemeanor 

no time waiver trials with 29 defendants in custody.” On August 9, the court 

advanced the trial to September 30.

On August 11, 2021, Marman filed a motion to dismiss, arguing the 11-

month delay in bringing his case to trial violated his right to a speedy trial 

under the federal Constitution. In opposition, the prosecution argued the 

pandemic was the cause of the court backlog and asked the trial court to take 

judicial notice of its own pandemic-related procedures and the emergency 

orders issued by state and local governments since the pandemic began. 

The court denied Marman’s motion “pursuant to Penal Code 1382 

and . . . constitutional speedy rights grounds,” granted the prosecution’s 

request for judicial notice, and denied the defense’s request for judicial 

notice.3 On September 3, the court advanced the trial to September 7. The 

defense requested a short continuance, and trial began September 16.4

3 Marman is not challenging the trial court’s ruling under Penal Code 

Section 1382.

4 The prosecution requested a continuance on July 16, and it was 

granted.
5

We turn to the merits of Marman’s claim. The Sixth Amendment to the 

federal Constitution guarantees criminal defendants a speedy trial. (U.S. 

Const., 6th Amend.) “ ‘[T]he right to a speedy trial is “fundamental” and is 

imposed by the Due Process Clause of the Fourteenth Amendment on the 

States.’ ” (People v. Williams (2013) 58 Cal.4th 197, 232 (Williams).) The 

right’s purpose is “ ‘ “(i) to prevent oppressive pretrial incarceration; (ii) to 

minimize anxiety and concern of the accused; and (iii) to limit the possibility 

that the defense will be impaired.” ’ ” (Hernandez-Valenzuela v. Superior 

Court (2022) 75 Cal.App.5th 1108, 1122 (Hernandez-Valenzuela).)

In analyzing a federal speedy trial claim, we consider four factors set 

forth by the United States Supreme Court: length of delay, reason for the 

delay, a defendant’s assertion of their right, and prejudice to defendant. 

(Barker v. Wingo (1972) 407 U.S. 514, 530.) None of these factors is “either a

necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial. Rather, they are related factors and must be considered 

together with such other circumstances as may be relevant.” (Id. at p. 533.) 

It is the defendant’s burden to establish a speedy trial violation under these 

factors. (Williams, supra, 58 Cal.4th at p. 233.)

We review the grant or denial of a speedy trial motion for abuse of 

discretion. (People v. Buchanan (2022) 85 Cal.App.5th 186, 191.) The 

“ ‘deference [this standard] calls for varies according to the aspect of a trial 

court’s ruling under review.’ ” (Ibid., brackets in original.) “Under an abuse 

of discretion standard, ‘ “[t]he trial court’s findings of fact are reviewed for 

substantial evidence, its conclusions of law are reviewed de novo, and its 

application of the law to the facts is reversible only if arbitrary and
6

capricious.” ’ ”

5 (People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 

55, disapproved on other grounds in Camacho v. Superior Court (2023) 

15 Cal.5th 354, 392.)

The first Barker factor — length of the delay — “encompasses a ‘double 

enquiry.’ [Citation.] ‘Simply to trigger a speedy trial analysis, an accused

must allege that the interval between accusation and trial has crossed the 

threshold dividing ordinary from “presumptively prejudicial” delay, . . . since, 

by definition, he cannot complain that the government has denied him a 

“speedy” trial if it has, in fact, prosecuted his case with customary 

promptness. If the accused makes this showing, the court must then 

consider, as one factor among several, the extent to which the delay stretches 

beyond the bare minimum needed to trigger judicial examination of the 

claim. [Citation.] This latter enquiry is significant to the speedy trial 

analysis because . . . the presumption that pretrial delay has prejudiced the 

accused intensifies over time.’ ” (Williams, supra, 58 Cal.4th at p. 234.) As 

postaccusation delay approaches one year, courts treat it as “ ‘presumptively 

prejudicial.’ ” (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1.) 

Here, Marman’s delay was “ ‘presumptively prejudicial’ ” since, at the time of 

his motion, he’d been waiting eleven months. (Ibid.) The first factor favors 

Marman. (Williams, at p. 234.)

5 We disagree with Marman’s contention that the trial court did not use 

its discretion in making its ruling. The record shows the court considered the 

briefing and evidence submitted by the parties and the pandemic’s effect on 

the operations of the court. The court confirmed it was basing its decision on 

Marman’s motion, the prosecution’s opposition, and the prosecution’s exhibits 

on the record. At the prosecution’s request, the court took judicial notice of 

all statewide and local emergency orders limiting its operation during the 

pandemic. It also denied the defense’s request for judicial notice of 

operations that occurred at the Civic Center Courthouse 15 years ago.
7

The second factor — reason for the delay — requires us to ask 

“ ‘whether the government or the criminal defendant is more to blame for 

th[e] delay.’ [Citation.] A delay meant to hamper the defense weighs heavily 

against the prosecution, while more neutral reasons such as negligence or 

overcrowded courts weigh less heavily. [Citation.] Delays attributable to the 

defendant are effectively forfeited under the standard waiver doctrine.” 

(People v. Bradley (2020) 51 Cal.App.5th 32, 41, disapproved on another 

ground in Camacho v. Superior Court, supra, 15 Cal.5th at p. 392.) 

Here, the reason for delay weighs against finding a constitutional 

violation. We join other courts in concluding 2020 and 2021 delays were due 

to the COVID-19 pandemic. (Hernandez-Valenzuela, supra, 75 Cal.App.5th 

at pp. 1127–1129, 1134; Elias v. Superior Court (2022) 78 Cal.App.5th 926, 

942–943 [concluding “a year of continuances based on the COVID-19 

pandemic” from May 2020 until June 2021 were “valid”].) For example, in 

Hernandez-Valenzuela, we considered delays in this same trial court from

September 2020 to March 2022 and found they were “not unreasonable” 

because the “court’s backlog . . . was the result of exceptional circumstances 

arising from the COVID-19 pandemic.” (Hernandez-Valenzuela, at pp. 1127–

1129, 1134.) We found that none of the various health and safety orders

delaying trials before the court’s reopening in June 2021 “were the fault of 

the prosecution or respondent court but rather the unprecedented effects of 

the pandemic.” (Id. at p. 1128.) In addressing delays in the months after the 

court reopened, we noted “after fifteen months of diminished or no capacity to 

conduct criminal jury trials, it was not surprising that [the court] confronted 

an ‘ “inordinate number of cases for court disposition.” ’ ” (Ibid.) “[I]t was not 

unreasonable for respondent court to not have addressed its backlog within 

seven, nine, or twelve weeks of reopening . . . . Moreover, it was not 
8

unreasonable after those fifteen months for the court to need some latitude to 

determine how best to address its backlog, while the pandemic persisted 

despite the full reopening.” (Ibid.) 

Marman provides no compelling reason for us to reach a different 

conclusion here. Eight of the 11 months Marman waited for trial stemmed 

directly from the COVID-19 shutdown and preceded the trial court’s

reopening. During that period, the court explicitly continued Marman’s trial 

due to “exceptional and extraordinary circumstances, under Federal, State 

and Local emergency proclamations and in consideration of public health due 

to the Covid-19 pandemic.” “Health quarantines to prevent the spread of 

infectious diseases have long been recognized as good cause for continuing a 

trial date.” (Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 169.) “ ‘A 

contrary holding would require trial court personnel, jurors, and witnesses to 

be exposed to debilitating and perhaps life-threatening illness. Public health 

concerns trump the right to a speedy trial.’ ” (Ibid.) 

The remaining three months of delay stemmed from the backlog 

COVID-19 created in the trial court. (Hernandez-Valenzuela, supra, 

75 Cal.App.5th at p. 1128.) The court was working through 382 felony cases 

with speedy trial implications in those seven weeks. The continuances in 

June and July 2021 occurred within the first six weeks of reopening. (Ibid.) 

Moreover, unlike the defendants in Hernandez-Valenzuela, Marman received

his trial within 12 weeks of reopening. (Id. at p. 1121, 1128.) On this record, 

the court could reasonably conclude the delays in bringing Marman’s case to 

trial were attributable to the COVID-19 pandemic, not the prosecution or the 

court.

6

6 Marman suggests COVID-19, when viewed in hindsight, “may more 

accurately be described as a recurrent or even a chronic phenomenon.” Even 
9

The Attorney General concedes the third factor — the defendant’s 

assertion of the right — favors Marman as he consistently maintained his 

demand for a speedy trial.

The fourth factor is prejudice. (Barker v. Wingo, supra, 407 U.S. at

p. 530.) The harm caused by unreasonable delay between accusation and 

trial may involve “ ‘oppressive pretrial incarceration,’ ‘anxiety and concern of 

the accused,’ and ‘the possibility that the [accused’s] defense will be impaired’ 

by dimming memories and loss of exculpatory evidence. [Citations.] Of these 

forms of prejudice, ‘the most serious is the last, because the inability of a 

defendant adequately to prepare his case skews the fairness of the entire 

system.’ ” (Doggett v. United States, supra, 505 U.S. at p. 654; accord, People 

v. Horning (2004) 34 Cal.4th 871, 892.) But Marman must show more than 

presumptive prejudice. “[P]resumptive prejudice does not alone entitle a 

defendant to relief; it is only ‘part of the mix of relevant facts, and its 

importance increases with length of delay.’ ” (Horning, at p. 894.) 

Marman offers several reasons why the delay was prejudicial. None 

are persuasive. For example, he asserts the delay may have harmed his 

defense because, had the trial occurred sooner, he might have had a better 

memory of the attack. But his theory of the case belies this assertion. At 

trial, Marman argued he was physically incapable of forming a memory of the 

attack because of a heightened fear response from symptoms associated with 

PTSD.

Next, Marman contends his delay was prejudicial because he spent 

nearly a year in custody awaiting trial in pandemic-related lockdown 

if we were inclined to agree, the trial court made its decision in August 2021. 

We review that decision for abuse of discretion, and we cannot overturn it 

because we have the benefit of hindsight two years later.
10

conditions. Although we are sympathetic to the conditions of Marman’s wait, 

as the Elias court explained, “he [was] in the same position as hundreds of 

other in-custody defendants awaiting trial due to COVID-19 pandemic 

delays. Lengthy pretrial incarceration ‘ “ ‘unenhanced by tangible 

impairment of the defense function and unsupported by a better showing on 

the other [Barker] factors than was made here, does not alone make out a 

deprivation of the right to a speedy trial,’ ” ’ ” even when the defendant 

“objected to the trial continuances.” (Elias v. Superior Court, supra, 

78 Cal.App.5th at p. 943.) The same is true here. 

Finally, Marman contends the delay was prejudicial because his time in 

pretrial custody does not match the seriousness of his crimes. We disagree. 

Marman assaulted two police officers and fought for their weapons. He was 

so persistent in his attack it took bystander intervention to stop it. His 

attack left one officer scarred, and he nearly gained control of a firearm. His 

pretrial custody does not outweigh the seriousness of his crimes.

Balancing the four factors, we find no abuse of discretion in the trial 

court’s determination that Marman did not establish a violation of his Sixth 

Amendment right to a speedy trial.

II.

Next we address Marman’s contention that the trial court erred by

failing to give CALCRIM No. 3406, the pattern jury instruction on mistake of 

fact. The Attorney General concedes the court should have given the 

instruction, but argues the error was harmless. We agree. 

CALCRIM No. 3406 provides “ ‘[t]he defendant is not guilty . . . if 

[he] . . . [reasonably] did not know a fact.’ ” (People v. Speck (2022) 

74 Cal.App.5th 784, 789.) A trial court’s error in failing to instruct on the 

mistake-of-fact defense is reversible only if it is reasonably probable a more 
11

favorable outcome would have been achieved had the error not occurred.

(People v. Hanna (2013) 218 Cal.App.4th 455, 462–463.) “ ‘ “In making that 

evaluation, an appellate court may consider, among other things, whether the 

evidence supporting the existing judgment is so relatively strong, and the 

evidence supporting a different outcome is so comparatively weak, that there 

is no reasonable probability the error of which the defendant complains 

affected the result.” ’ ” (People v. Larsen (2012) 205 Cal.App.4th 810, 831, 

italics omitted.) “We also consider the instructions as a whole, the jury’s 

findings, and the closing arguments of counsel.” (Ibid.)

It is not reasonably probable Marman would have received a more 

favorable outcome had the trial court given the mistake-of-fact instruction. 

Overwhelming evidence supports Marman’s convictions. Tang’s body camera 

footage supported the officers’ account of Marman’s attack on them and 

showed Marman coming face to face with Tang before tackling him. Both 

officers were in uniform and approached Marman in a marked police car. 

The jury instructions given required the jury to find Marman knew his 

victims were police officers. For all the crimes of which Marman was 

convicted, CALCRIM No. 252 specifically instructed the jury had to find 

Marman “knew, o[r] should have known, that an alleged victim was a peace 

officer . . . .” The court reiterated the required mental state for each specific 

crime. CALCRIM No. 2654 required the jury to find Marman “knew or 

reasonably should have known that Officer Tang was a peace officer 

performing his duties.” The jury had to make the same finding to convict 

Marman of taking an officer’s baton, resisting officers, and battering officers. 

Moreover, defense counsel’s closing argument emphasized Marman’s state of 

mind during and before the assault.
12

On this record, it is not reasonably probable Marman would have 

achieved a more favorable outcome had the trial court given the mistake-offact instruction.

DISPOSITION

The judgment is affirmed. 
13

_________________________

Rodríguez, J.

I CONCUR:

_________________________

Fujisaki, J.

A164642
14

TUCHER, P. J., Concurring.

The two defendants whose speedy trial motions we considered in 

Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108 both 

had September 2021 trial dates continued on account of court 

congestion. (Id. at pp. 1119–1120.) In dissenting from the denial of writ 

relief for those individuals, I cited the shocking statistic that “respondent 

court sent out only a single in-custody felony defendant for trial during 

the entire month of September.” (Id. at p. 1142 (dis. opn. of Tucher, 

P. J.).) Apparently, Marman was that defendant. Because his trial went 

forward on September 7, 2021, and because delay until that date has not 

been shown to have caused him substantial prejudice, I join the majority in 

concluding that the trial court did not abuse its discretion in refusing to 

dismiss Marman’s case, even as I remain concerned about the pace at which 

the San Francisco Superior Court acted to clear the backlog of criminal cases 

after it “return[ed] to ‘pre-pandemic’ levels of service” at the end of June 

2021. (Id. at p. 1137.)

TUCHER, P. J.

A164642