DA Gascón Takes Vital Steps to Aid Immigrant Victims through Prosecution and Partnership

May 23, 2011

CONTACT: Erica Terry Derryck, DA Gascón’s Office, (415) 553-1167
ADA Seth Steward, DA Gascón’s Office, (415) 553-1014

Roofing Company Owner & Foreman Sentenced to Jail in Death of Worker Key Agreement Signed with the Mexican Consul General’s Office in Support of Multi-National Crime Victims

SAN FRANCISCO, CA – District George Gascón announced today two important steps the District Attorney’s Office is taking in the fight to protect workers and all victims of crime, regardless of their immigration status, through prosecution and the leveraging of innovative partnerships.

Joined by Carlos Félix Corona, Cónsul General of México in San Francisco, Cora Gherhga, the Regional Manager for the Division of Occupational Safety and Health of CAL/OSHA, and members of the District Attorney’s Office and CAL/OSHA staff, District Attorney Gascón announced the sentencing of two defendants in the death of a roofer, and the signing of an agreement with the Mexican Consul General’s Office to support multi-national victims and their participation in the prosecution of the crimes committed against them.

“The prosecution and conviction of these two defendants whose careless disregard for their worker’s safety resulted in his untimely and preventable death sends a loud and clear message to anyone doing business in our City,” said District Attorney George Gascón. “You will not get a free pass when your conduct jeopardizes the health and well-being of individuals seeking to earn an honest living.”

Sam Hyung Goo Shim, age 68 (CTN 10011927), has been convicted in connection with the January 2008 death of one of his employees. Antonio Martinez, age 39, fell to his death while working for Shim as a roofer. Shim was also convicted of workers compensation insurance fraud and tax evasion for failing to report Martinez’s wages in payroll filings submitted to Shim’s insurance carrier and the state Employment Development Department. Shim was sentenced on Monday, May 23, 2011 to one year in county jail.

“Holding employers accountable is necessary, especially in a situation where such a tragedy is preventable,” said Cal/OSHA Chief Ellen Widess. “This is a case where an employer and supervisor ignored basic safety and health requirements which resulted in the death of a worker. Cal/OSHA will hold employers like this accountable, as is evidenced by this criminal conviction.”

Also convicted in connection with Martinez’s death was the foreman, Jwa Young Kim, age 56 (CTN 10011910), who was sentenced to 364 days in county jail. Shim’s corporation, California C&R, Inc. (CTN 2451742), was convicted in Martinez’s death as well. All three defendants were ordered to pay restitution to the victims.

A grand jury indicted the three defendants on April 13, 2010. The convictions were the result of a negotiated plea agreement between the defendants and the San Francisco District Attorney’s Office.

On January 16, 2008, Antonio Martinez was one of several employees working on a roofing project at a four-story apartment building located at 646 Corbett Avenue in the Twin Peaks area of San Francisco. Martinez was working along the roof’s edge when he fell 38 feet to the sidewalk below. According to evidence presented to the Grand Jury, there were no safety measures in place at the worksite – in violation of Cal/OSHA regulations. Neither Martinez nor anyone else working on the roof was wearing a harness or any other type of fall protection. There were no railings, scaffolds or other barriers to prevent a fall to the sidewalk. There were also no written safety policies or safety training, as required by Cal/OSHA regulations. Defendant Shim had previously been cited by Cal/OSHA for failing to have a safety program. The foreman, defendant Kim, was present at the worksite and was Martinez’s supervisor.

“This case is a prime example of a business owner and his foreman's blatant disregard for their employees which tragically and needlessly resulted in the death of an employee,” said Insurance Commissioner Dave Jones. “My heartfelt condolences go out to Mr. Martinez's family. Business owners should be reminded that worker protection laws will be fully enforced in California.”

Shim pleaded guilty to four felonies: violation of Penal Code section 192(b) (involuntary manslaughter); violation of Labor Code section 6425 (willful violation of Cal/OSHA order causing death); violation of Insurance Code section 11880 (workers compensation premium fraud); and violation of Unemployment Insurance Code section 2117.5 (tax evasion). California C&R, Inc., pled guilty to one felony count of violation of Labor Code section 6425. Kim pled guilty to one misdemeanor count of violation of Labor Code section 6425.

The case was referred to the District Attorney’s Office by the San Francisco office of Cal/OSHA, whose safety engineer, Chris Kirkham, conducted a thorough investigation of the incident. The California Department of Insurance investigated the fraud portion of the case.

Lieutenant Carlos Sanchez and Investigator Raymond Tang of the District Attorney’s Office investigated the case. Max Peltz is the Assistant District Attorney who prosecuted the case.

In hopes of preventing crimes this from occurring and ensuring that when they do there is the utmost cooperation in prosecuting them, the San Francisco District Attorney’s Office signed a first-of-its kind agreement with the Mexican Consul General’s Office focused on victim services and assistance with securing testimony and appearances by multi-national victims. The effort is a part of the District Attorney's commitment to protecting public safety by encouraging all victims of crime to come forward and report.

“Ensuring that vital victim services are available to individuals, regardless of their immigration status, allows witnesses and victims of crime to better aid in the People’s prosecution and recover from the harm they may have suffered,” said District Attorney George Gascón. “I am grateful for the partnership of the Mexican government in our efforts to prosecute crime and ensure justice for all victims.”