The brother of Ashli Babbitt, the San Diego woman fatally shot during the Jan. 6, 2021, insurrection at the U.S. Capitol, was denied Friday a chance at a diversion program that could have led to the dismissals of two misdemeanor criminal cases filed against him.
Prosecutors say that in September of last year, Witthoeft became “enraged” when an SDG&E worker’s truck was stopped at a Point Loma intersection, where workers were repairing a utility box, leading Witthoeft to slap the worker and tell him to “talk in English you (expletive) immigrant” and “go back to your country.”
In January, he allegedly got into an altercation with another man on Muir Avenue in Ocean Beach, in which he’s accused of striking the victim, knocking him to the ground, then stomping on the man’s phone. The San Diego City Attorney’s Office said the victim was helping a disabled friend out of a car when Witthoeft encountered him, angering Witthoeft because the man’s car was blocking a sidewalk.
On Friday, Witthoeft, 33, asked a judge to grant his entry into a diversion program created under Assembly Bill 3234, which allows defendants with eligible misdemeanor charges to complete the program — which often includes conditions such as anger management classes, substance abuse treatment and/or community service — in a bid to have the charges dismissed and the arrests erased from their records.
Varun Sabharwal, a public defender representing Witthoeft, argued that trauma stemming from the recent death of Witthoeft’s sister and the public nature of her passing led him to deal with his grief in inappropriate ways.
In court filings, the attorney argued that Witthoeft “made a momentary lapse in judgment caused by trauma and anger” and that he has also dealt with death threats in the aftermath of Jan. 6.
“I cannot imagine what it must be like to see a family member die such a public death and then to have that broadcast all over the world,” Sabharwal said in court. “That family tragedy has had a deleterious impact on Mr. Witthoeft’s life.”
Deputy City Attorney Taylor Hearnsberger said the nature of the two recent cases, as well as a prior conviction out of East County showed he was not suitable for the diversion program. In his prior case, prosecutors say he got into an argument with a 71-year-old man in Lakeside in 2016, in which he screamed at the man, kicked the door of the man’s truck and kicked out the window of the victim’s camper shell.
He was charged with felony vandalism, but pleaded guilty to a misdemeanor and was placed on probation.
“This is someone who has had a chance at probation before,” Hearnsberger said. “The societal interests in prosecution far outweigh his interest in keeping his record clean and for diversion in this case.”
San Diego Superior Court Judge Anthony J. Campagna denied the diversion request, telling Witthoeft, “When I look at the history going back to 2016 and then the two incidents that are alleged (in the recent cases,) I just don’t find you’re an appropriate candidate.”
Witthoeft is set to go to trial in both cases in July.
He faces charges of battery with a hate crime enhancement, as well as a count of violating the victim’s constitutional rights by threat of force, in connection with the SDG&E worker, and charges of battery and vandalism in connection with the man in Ocean Beach.
City News Service contributed to this article.