A Lompoc man still will face a special circumstance for allegedly lying in wait in the case involving the killing of his ex-girlfriend, but a stalking charge was dropped in Santa Maria Superior Court because of timeliness.

Jorge Tovar Fernandez

Jorge Tovar Fernandez

Wearing a suit, a face mask, a face shield and gloves, Jorge Tovar Fernandez, 30, appeared before Judge Patricia Kelly on Thursday morning. 

Tovar Fernandez has been charged in connection with the fatal shooting of Elyse Erwin, 28, of Santa Maria in a Goodwin Road parking lot in Orcutt on Easter morning in 2017.

The defendant and Erwin are parents of a young girl and were engaged in a contentious custody battle that required law enforcement officers to keep the peace. 

The defendant has been charged with murder and a number of sentencing enhancements. But a second case filed last year added a charge of felony stalking, citing the defendant’s actions against the victim before her death. 

However, Judge Gustavo Lavayen ruled at the end of the preliminary hearing that the prosecution did not provide enough evidence for Tovar Fernandez to stand trial on the stalking charge.

When the District Attorney’s Office filed the criminal complaint in January, it included a less stalking charge, leading to defense objections.

On Thursday morning, attorneys debated whether Tovar Fernandez had conducted continuous behavior related to the stalking allegations or if it had stopped for several months before the killing. 

After a break in the court, Deputy District Attorney Anne Nudson said her office would not proceed with the stalking charge based on the statute of limitations.

Defense attorney Jeremy Lessem also argued that insufficient evidence existed to support keeping the special circumstance accusing his client of lying in wait.

But Nudson said video showed a vehicle parking near the scene before and leaving several minutes later, around the time of the shooting.

Erwin was shot in the back of her head as she exited her car, dropping her keys and purse, Nudson said, adding there was no indication of a struggle or argument occurring.

Kelly likened her role in Thursday’s hearing as an appellate judge, instead of a trial judge. 

Last summer, Judge Lavayen decided the defendant should face the lying in wait allegation after evaluating the evidence presented during the preliminary hearing, Kelly said.

“I understand there may be issues at trial, but that’s not the purpose of today’s hearing,” Kelly said, adding that the motion failed and the special circumstance would remain. 

Tovar Fernandez was ordered to return Sept. 12 for his arraignment hearing, when he is expected to enter a plea.

He remains in the custody of the Santa Barbara County Jail. 

Prosecutors chose not to pursue the death penalty in the special-circumstance case, meaning he faces life in prison without the possibility of parole if convicted.

Noozhawk North County editor Janene Scully can be reached at jscully@noozhawk.com. Follow Noozhawk on Twitter: @noozhawk, @NoozhawkNews and @NoozhawkBiz. Connect with Noozhawk on Facebook.

A stylized hawk's head on a red background

Janene Scully | Noozhawk North County Editor

Noozhawk North County editor Janene Scully can be reached at jscully@noozhawk.com.