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Ruling could help defendants

A San Luis Obispo attorney says a local legal dispute over a restraining order could have statewide legal ramifications.

A potential new case precedent could make it more difficult for prosecutors to obtain restraining orders and provide defense lawyers more power to fight rulings they say commonly are handed down against their clients.

Criminal defense lawyer Jeff Stein won an appeal earlier this month in San Luis Obispo Superior Court on behalf of his client, Timothy Ferrari of Nipomo, who faces misdemeanor charges of assault and battery in an alleged May 3, 2009 altercation in Nipomo.

A panel of three local judges — Dodie A. Harman, Ginger Garrett and Martin J. Tangeman — ruled to withdraw a restraining order against Ferrari issued by trial court Judge John A. Trice.

Trice issued a three-year restraining order in July 2009 against Ferrari based on his alleged assault of 55-year-old Kenneth Walkup of Nipomo.

But the three judges, who decided the misdemeanor case on appeal, ruled Trice had no good cause to believe Ferrari, 34, attempted to intimidate or threaten Walkup to keep him from participating in the criminal proceedings.

The law requires prosecutors to show that a defendant has threatened or otherwise discouraged a witness from participating in criminal proceedings, or is likely to do so, before a restraining order can be granted.

Some judges have issued the order, as Trice did, based on the alleged crime and the harm caused and not conduct after the alleged incident.

Stein said he hopes to publish the local court’s ruling in a state legal journal to establish it as a precedent.

“From my point of view, there is absolutely no indication of any threat or action to discourage or dissuade by Tim Ferrari, which was the central holding for reversing the order,” Stein said.

The District Attorney’s Office isn’t commenting on the Ferrari case because it’s still active, prosecutors said, but an appeal to the higher 2nd District Court of Appeals in Ventura is expected.

Ferrari has pleaded not guilty to the charges. Stein contends his client was acting in self-defense.

Ferrari’s case could decide how judges are to proceed on the orders during a pending trial.

Trice’s initial restraining order prohibited Ferrari from contacting Walkup or physically coming near him.

Trice said in court transcripts that he reviewed evidence that included a video recording of the altercation and decided that evidence was enough to issue the restraining order.

“A review of that video tape indicated to me that there was more than sufficient evidence that Mr. Ferrari had unlawfully assaulted Mr. Walkup,” Trice said, according to court transcripts.

Trice added that his view was that “there was good cause to believe that harm to Mr. Walkup had occurred, and that’s why I issued the order.”

“It was my position in the beginning, when someone’s named as the victim of assaultive behavior or threats, that they should be entitled to the protection under Penal Code section 136.2,” Trice said.

Stein said clarity on the law is important because criminal defendants can be unfairly accused of stalking an alleged victim, or fingered with other violations relating to the order, with a possible result of jail time or loss of Constitutional rights.

Stein also said Trice’s ruling was unlawful because it included denying his client the right to bear firearms, leaving him unprotected.

“The general rule, all people are presumed innocent (until proven guilty), applies to Mr. Ferrari,” Stein said.

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