2-Year Sentences For Bosses In Death Of Milpitas Construction Worker

Two men received two-year sentences Friday for the 2012 death of a construction worker in Milpitas, a Santa Clara County deputy district attorney said.

Richard Liu, 53, and Dan Luo, 37, were convicted in May of involuntary manslaughter in the workplace death of Raul Zapata Mercado, 39, on Jan. 28, 2012, Deputy District Attorney Bud Porter said.

It was Mercado’s second week on the job when a 12-foot dirt retaining wall collapsed on him at a 5,800-square-foot home on Calaveras Ridge Drive, Porter said. The men were remanded into custody at Downtown Superior Court in San Jose on Friday to serve their sentence in county jail, Porter said.

Mercado was from Zacatecas, Mexico and left behind his wife and three daughters, two young adults and a teenager, Porter said.

Liu owned U.S.-Sino Investment Inc., based in Fremont, and Luo was a project manager for the company, which was a general contractor for the Milpitas home under construction, according to Porter.

A subcontractor on the project at one point wasn’t getting paid by Liu’s company and walked off the job before the accident, Porter said.

The company sought the help of day laborers, one of them Mercado, to continue work on the project, which was already over budget and behind schedule, according to Porter.

A city inspector had issued a “stop work” notice to Luo three days before the accident following heavy rain, but Luo had workers continue operations at the site without informing them of the order, Porter said.

The company did not have an excavation permit required for projects where people are working in ditches 5 feet or deeper, according to the California Division of Occupational Safety and Health. The company also did not have proper reinforcements in the collapsed trench, which was at least 13 feet deep, Cal/OSHA officials said.

The company’s contractor license was suspended by the Contractors State License Board days after Mercado died. Cal/OSHA issued 14 citations that totaled $168,175 against the company in June 2012. Liu had been in China at the time of Mercado’s death and did not return to the U.S. until last November, when he was arrested at San Francisco International Airport on a $1 million warrant, prosecutors said.

Liu turned himself in to authorities after he stepped off a plane and was taken into custody by U.S. Customs and Border Protection officials, according to the district attorney’s office.

Porter said he argued for the maximum sentence of four years in jail and the defense attorneys asked for probation and community service for their clients. The two-year sentence was a recommendation from the county’s Probation Department, according to Porter.

The case was “groundbreaking” because it’s not common to have an employer go to trial on criminal charges in a worker’s death while on the job, he said. Porter said the sentence served as a warning to people in the construction industry that they will be held responsible if they aren’t following safety rules. “

The defendants treated the victim like his life didn’t matter and they gambled with his life by not paying any attention to his safety,” Porter said.

Defense attorney Marlene Thomason, who represented Luo, said she had asked the judge to have Luo to serve three years of community service. Luo has a degree in biochemistry he obtained in China and an advanced degree in computer science, but didn’t have a background in construction until January 2012, Thomason said.

As project manager, Luo visited a construction site a few times a week and took photos of the site that he sent to his boss, Thomason said.

Prior to Friday’s sentencing, there had not been a jail sentence of more than one year for those held responsible for deaths among all the workplace fatalities filed with Cal/OSHA, she said.

Only two people were sentenced to one year and the others were put on probation, Thomason said. Liu’s attorney, Michael Reiser, did not immediately return a call for comment today.

--Bay City News