The attorney representing Jorge Fernandez Tovar, accused of murdering his ex-girlfriend outside an Orcutt apartment complex on Easter Sunday this year, sought last week to have the protective order issued for the couple's child lifted.
The court denied the request Sept. 27 on the basis that the 6-year-old child was a viable witness to the alleged crime, according to Deputy District Attorney Fabiana Fede, who is prosecuting the case.
Tovar, 27, of Lompoc, faces the death penalty or life in prison without parole because of the special circumstances in the murder, including lying in wait for Elyse Erwin. Tovar also faces a weapons enhancement. He pleaded not guilty and denied all special allegations in June.
Tovar's attorney, Jeremy Lessem, defended the request to quash the protective order, noting it was ordered prior to Tovar hiring an attorney. Additionally, "the minor child is neither a witness or victim in this case, thereby making any criminal protective order overbroad and illegal," Lessem argued in his request.
The protective order prohibits Tovar from contacting his daughter, and from intimidating or dissuading her during his criminal proceedings.
While Tovar is accused of murdering Erwin, "there is no accusation that the minor child was either present at the scene of the crime or in any way a witness to the event," nor is she a named as a victim, Lessem argued.
Fede opposed the request, saying the child is indeed a witness in the case, and that there is good reason to believe Tovar could try to manipulate his daughter, given his reported abuse/stalking of Erwin.
The child was interviewed in April after Erwin was shot and killed, and authorities reportedly found out the child had knowledge of the crime and witnessed the couple's hostile relationship throughout the years.
Tovar used to tell [the child]: "'Mommy's dirty,' 'Mommy's a slut,' and 'Don't kiss Mom,'" the opposition said.
Tovar also allegedly told the child was going to make her love him more than Erwin so that she'd want to be with him, the opposition continued.
Erwin and Tovar were involved in a bitter child custody battle, and Tovar verbally abused and stalked Erwin, according to police reports, "leading her to believe that Tovar might actually physically harm her," the opposition said.
Erwin told family and friends she feared for her safety, and made many attempts to get a restraining order, according to the opposition. As well, the child witnessed the constant verbal abuse and stalking, and even once told Erwin that "she spent the weekend with [dad] watching you."
The child's young age, vulnerability and Tovar's statements that he "planned to win his daughter over," and that he "buys her whatever she wants," casts no doubt Tovar will attempt to dissuade her if the protective order is lifted, Fede wrote.
Court documents show that three years before she was murdered Erwin filed a restraining order against Tovar in April 2014, which was denied.
Erwin also sought a child abduction prevention order in March 2014, because Tovar's parents had dual citizenship and could "remove my child to Mexico," she wrote in her petition.
"He frequently traveled to Mexico and his parents have a house in Michoacan. If he really wanted to live there, he's all set up to go," Erwin wrote.
Erwin alleged that Tovar had been convicted of assaulting his brother with a deadly weapon in her petition.
Tovar's criminal case returns to court Oct. 25 to set a preliminary hearing date.