Ashli Babbitt’s brother cites her Capitol riot death in unsuccessful bid to divert hate-crime prosecution
Roger Witthoeft Jr. is charged in separate battery cases involving an SDG&E worker and a man helping a disabled friend.
A judge denied a request May 6 to divert the hate-crime prosecution of an Ocean Beach man who argued that an alleged attack on a utility worker last year was spurred by “extreme stress and trauma” caused by the shooting death of his sister, Ashli Babbitt, on Jan. 6, 2021, inside the U.S. Capitol.
Roger Stefan Witthoeft Jr., 33, faces misdemeanor charges in two separate incidents: a September attack on a San Diego Gas & Electric worker in Point Loma, during which prosecutors say he shouted racial slurs at the victim, and a January confrontation in Ocean Beach involving a man who was helping a disabled friend.
Witthoeft has pleaded not guilty in both cases. He was arraigned in the second case May 6 in San Diego County Superior Court.
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In court documents filed in April, Witthoeft and his attorney asked the judge to divert the prosecution of the hate-crime case, proposing that he instead perform community service and take anger management classes and sensitivity training. Under a 2021 state law, judges have discretion to divert a wide number of misdemeanor charges, which entails suspending prosecution and then dismissing the case if the person meets certain court-ordered criteria.
Judge Anthony Campagna denied the diversion request, said Chief Deputy City Attorney Taylor Hearnsberger. The judge also ordered Witthoeft to have no contact with the man involved in the newer case and to stay away from the location where the incident occurred.
The San Diego city attorney’s office first charged Witthoeft in March in the incident involving the SDG&E traffic controller, alleging misdemeanor battery with a hate-crime enhancement and violating the victim’s constitutional rights by threat of force. In the January case he is charged with misdemeanor battery and vandalism.
Roger Stefan Witthoeft, Jr., is the younger brother of the Ocean Beach woman shot and killed Jan. 6, 2021, inside the U.S. Capitol
Deputy Public Defender Varun Sabharwal, who represents Witthoeft, argued in the motion seeking diversion that the incident involving the SDG&E worker could be blamed in part on “a momentarily lapse in judgment caused by trauma and anger” related to Babbitt’s death.
“Her death was broadcast nationwide and internationally, which caused Mr. Witthoeft extreme stress and trauma,” Sabharwal wrote. “Mr. Witthoeft also received numerous death threats in the aftermath of that incident.”
Ashli Babbitt, 35, was shot as she tried to enter the House chamber.
Sabharwal also wrote that Babbitt’s death and its aftermath led Witthoeft “to an unfortunate path — alcoholism.”
The defense attorney contended that Witthoeft “does not dispute that his actions were ill-advised and regretful” but that he “is still under a lot of stress from his sister’s death and the subsequent media spectacle, which exasperated his trauma” and negatively affected his pool cleaning business.
Sabharwal, who did not respond to The San Diego Union-Tribune’s request for comment May 6, filed the diversion request April 12. But before the judge could rule on it, prosecutors charged Witthoeft in connection with the January case.
Prosecutors opposed diversion, citing Witthoeft’s alleged conduct in both incidents and two previous convictions for driving under the influence and misdemeanor vandalism. Prosecutors also claimed to have evidence that Witthoeft used a racial slur while fighting a Black man in 2018 in an incident that was not prosecuted.
The opposing motions filed by Hearnsberger and Sabharwal shed new light on both incidents, the first of which occurred around 11:10 p.m. Sept. 14 when Witthoeft drove up to an SDG&E roadblock.
According to prosecutors, Witthoeft got out of his pickup and confronted the traffic controller, slapped him and told him to “Go back to your country you [expletive] immigrant.” Prosecutors alleged that Witthoeft then got back into his pickup and revved its diesel engine as he inched toward the worker who was standing in front of the truck, getting within about two feet of the worker before driving away.
Sabharwal argued in court documents that the entire incident began because Witthoeft couldn’t hear the worker and the worker couldn’t hear him over the noise of Witthoeft’s engine. The defense attorney said Witthoeft asked the worker to move so he could turn his truck around, and the miscommunication between the two irritated Witthoeft and “ultimately led to the verbal altercation.”
A man already accused of attacking and hurling racial slurs at a utility worker in Point Loma last year is expected to face additional charges stemming from a separate attack on a man in Ocean Beach, the San Diego city attorney’s office said April 26.
Prosecutors said the second incident occurred Jan. 13 when Witthoeft and his father were walking down a sidewalk on Muir Avenue with their surfboards when they happened on a car partially blocking the sidewalk.
“Defendant was immediately hostile,” Hearnsberger wrote, contending that Witthoeft confronted the 65-year-old driver, who was helping a friend unload her wheelchair from the car.
The prosecutor alleged that Witthoeft stood in the older man’s way, and when the man tried to push past him, Witthoeft punched or slapped him, knocking him to the ground, and then stomped on his cellphone.
Witthoeft previously pleaded guilty to a misdemeanor vandalism charge for a 2016 incident in Lakeside in which he went after a 71-year-old driver during a parking lot dispute and kicked the window out of his camper trailer, prosecutors said.