HATE-CRIME PROSECUTION STAYS FOR ASHLI BABBITT’S BROTHER

A judge on Friday denied a request to divert the hatecrime prosecution of an Ocean Beach man who argued his 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: the September attack on a San Diego Gas & Electric worker, during which prosecutors say he shouted racial slurs at the victim, and a January confrontation involving a man who was helping a disabled friend.

Witthoeft has pleaded not guilty in both cases.

In court documents filed last month, 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 cases if the person meets court-ordered criteria.

Judge Anthony Campagna denied the diversion request, Chief Deputy City Attorney Taylor Hearnsberger told the Union-tribune in a phone interview Friday. The judge also ordered Witthoeft to have no contact with the victim from the new case, and stay away from the location where that incident occurred.

The San Diego City Attorney’s Office charged Witthoeft in March with attacking an SDG&E traffic controller last year while shouting racial slurs at the Latino victim. Witthoeft faces charges of battery with a hate crime enhancement and violating the victim’s constitutional rights by threat of force.

In the more recent case, for which Witthoeft appeared in court Friday, he is charged with misdemeanor battery and vandalism.

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.

Sabharwal, who did not respond to a request from the U-T for comment Friday, filed the diversion request motion last month.

Prosecutors opposed diversion, citing Witthoeft’s alleged conduct in both incidents and two previous convictions for DUI and misdemeanor vandalism. Prosecutors also said they have evidence Witthoeft used a racial slur while fighting a Black man in 2018 in an incident 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. on Sept. 14 when Witthoeft drove up to an SDG&E roadblock near Ocean Beach and Point Loma.

According to prosecutors, Witthoeft got out of his pickup and confronted the traffic controller, slapping the victim and hurling racial slurs at him. Prosecutors said Witthoeft then got back into his pickup and revved its engine as he inched toward 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 victim to move so he could turn his truck around, and the miscommunication between the men irritated Witthoeft and “ultimately led to the verbal altercation.”

Prosecutors said the second incident occurred Jan. 13 in O.B., when Witthoeft and his father were walking down a sidewalk with their surfboards and they happened upon a car partially blocking a sidewalk.

“Defendant was immediately hostile,” Hearnsberger wrote, alleging Witthoeft confronted the 65-year-old driver, who was helping a friend unload her wheelchair.

The prosecutor said Witthoeft stood in the man’s way, and when the man tried to push past him, Witthoeft punched or slapped him, knocking him to the ground.