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any misidentification of defendant in the robbery case.14  The trial court could reasonably anticipate that substantial time would be needed to obtain all evidence on this question.  Admission of the evidence, moreover, would have tended to confuse the jury as to the questions for its decision.  The more examination time spent on this issue, the greater the risk that the jury would lose sight of the fact that Koll’s identification of defendant as a robber was not directly at issue in the murder case, and would decide the murder case on a legally incorrect ground.  

The trial court did not abuse its discretion (People v. Frye, supra, 18 Cal.4th at p. 945) in finding that the consumption of time and the risk of jury distraction were not justified by the marginal probative value of the proffered evidence.  Nor, contrary to defendant’s assertion, was the evidence of such probative strength that its exclusion violated his constitutional right to present a defense.  Application of the ordinary rules of evidence, such as Evidence Code section 352, generally do not deprive the defendant of the opportunity to present a defense (Frye, supra, at p. 945); certainly the marginal probative value of this evidence does not take it outside the general rule.

XIII.  Exclusion of Evidence of Police Dispatch Tape

14 The parties continue to differ on this point.  The Attorney General has requested this court take judicial notice of the unpublished appellate opinion affirming defendant’s robbery conviction, which the Attorney General interprets as showing that any misidentification was of Phillips, rather than defendant.  Defendant objects to our taking notice of the opinion for this purpose and also asserts that the opinion shows Phillips was not misidentified, but used an alias, and that defendant’s identification was only “tentative.”  Unpublished Court of Appeal decisions are citable without the formality of judicial notice for certain purposes, not including the use proposed here.  (Cal. Rules of Court, rule 977(a).)  We decline to take notice of the decision for purposes outside that rule, which further provides that such decisions may not be relied on by a court for other purposes.  (Ibid.)  The motion for judicial notice is therefore denied.  

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