People v. Hwang

• Decision Date: 13 June 1994
• Docket Number: No. B065537,B065537
• Citation: 25 Cal.App.4th 1168,31 Cal.Rptr.2d 61
• Court: California Court of Appeals Court of Appeals
• Parties: , 146 L.R.R.M. (BNA) 2666, 2 Wage & Hour Cas.2d (BNA) 141 The PEOPLE, Plaintiff and Appellant, v. Thomas Incho HWANG et al., Defendants and Respondents.

Page 61

31 Cal.Rptr.2d 61

25 Cal.App.4th 1168, 146 L.R.R.M. (BNA) 2666,

2 Wage & Hour Cas.2d (BNA) 141

The PEOPLE, Plaintiff and Appellant, v. Thomas Incho HWANG et al., Defendants and Respondents.

No. B065537.

Court of Appeal, Second District, Division 2, California.

June 13, 1994.

Review Denied Sept. 8, 1994.

[25 Cal.App.4th 1171] Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Appellate Div., and Shirley S.N. Sun, Deputy Dist. Atty., for plaintiff and appellant.

Richard E. Nahigian, Pasadena, and Michael R. Totaro, Los Angeles, under appointment by the Court of Appeal, for defendants and respondents.

BOREN, Presiding Justice.

Respondents Thomas Incho Hwang and Chung Chon Chang were held to answer by a magistrate for unlawfully taking a portion of a workman's wages, a felony. (Lab.Code, § 1778.) ¹ The superior court subsequently set aside the information and dismissed the case. (Pen.Code, § 995.) The People have appealed the order setting aside the information.

There is probable cause to believe respondents deliberately paid their employees far less than the prevailing wage required by law and by their agreement with the contracting public entity. Respondents' failure to pay employees their legal wages, plus the suspicious circumstances surrounding their payment of the wages, leads to the reasonable inference that respondents took or conspired to take a portion of their workers' wages. Therefore, respondents were properly held to answer for the section 1778 felony, and the order setting aside the information must be reversed.

FACTS ²

Respondent Thomas Incho Hwang is the owner of Lucky Construction Company (Lucky). Lucky was the successful bidder on 10 public works projects. ³ Respondent Chung Chon Chang is the manager/superintendent of Lucky, and makes hiring decisions and supervises some of the work. All of Lucky's workers, except day laborers, were hired by respondents.

The Labor Code requires that public works project employees be paid "the general prevailing rate of per diem wages." (§ 1771.) The prevailing wage rate is determined by the Director of the Department of Industrial Relations. (§ 1770.) Lucky's contracts with the Los Angeles Unified School District and other government entities specify that the prevailing wage must be paid and certified payroll records kept. They also specify that workers must be on the job for eight hours per day.

The evidence showed that Lucky's employees were not paid the legally specified prevailing wage. In fact, these workers were paid considerably less than the prevailing wage. ⁴ Respondent Hwang takes issue with the accounting methods used by state investigators, but does not refute the testimony showing that Lucky paid less than the prevailing wage.

The testimony revealed that there were unusual circumstances surrounding the payment of wages to the construction workers at Lucky's worksites.

Wilfredo Nunez, for instance, was directed to tell state inspectors that he was paid $20 per hour and also to hide in the tool shed when inspectors came to the worksite. On one occasion, a check was passed to him by a job superintendent, face side down, so he could not see the amount, and he was told to endorse it. He was then handed a cash payment. Nunez saw a coworker paid in a similar fashion.

Marco Ochoa was hired by respondent Hwang as a painter. He informed Hwang that he is not a licensed contractor. Hwang had Ochoa recruit workers to help with the painting. Respondent Chang instructed Ochoa to have the workers tell people they were earning the prevailing rate, which was far more than the $60 per day these workers were paid. While Ochoa paid the workers When Ricardo Estrada first arrived at a Lucky worksite, respondent Chang told him he was going to earn $26 per hour, and that if he was asked, he should tell people he was earning that amount. Respondent Hwang's wife passed Estrada a check to endorse, face down, but he saw that the amount of the check was for approximately $900. Estrada was then given $300 cash by Marco Ochoa, who recruited him to work at the Lucky project. When he asked for the rest of the money he was supposed to make, at a rate of $26 per hour, Ochoa replied that $300 was all Estrada was going to get. Ochoa drove with Estrada to a bank and deposited the check. Estrada saw a coworker being paid in a similar manner. On another occasion, Estrada was told to sign several checks made out in his name. He was not given any money from these checks, and was told that the money would be used to purchase materials.

the $60 daily rate that was promised, the checks he received from Lucky did not cover materials, so he had to use part of his paycheck and his coworkers' paychecks to buy the necessary materials. Ochoa was unhappy with this payment arrangement, and quit after one week though he had planned to work five or six weeks on the project. Ochoa denied "taking money" from the workers. Before receiving a paycheck, he [25 Cal.App.4th 1173] had to sign, at Hwang's insistence, a time sheet showing he earned the prevailing rate.

Carlos Juarez, a painter, was asked by Marco Ochoa to work at Lucky's public worksites. As with Estrada, Ochoa had Juarez endorse checks, then gave him only a portion of the face amount, saying that the rest would be used to buy materials. When Juarez refused to go along with this, after signing three such checks, Ochoa said "that the Koreans said that I could no longer work," and he was fired.

Inspectors discovered that workers who had Hispanic surnames, all of whom worked eight hours per day, were listed in Lucky's project diaries, but not in its certified payroll records. They were paid out of "petty cash."

Bok Chung Kim was hired by respondent Chang as a carpenter's helper. Chang told him he would be paid $330 per week. When Kim signed time sheets at Lucky's on-site office, he observed that his time sheets stated he was being paid $24 per hour, but he was not in fact ever paid that amount. One weekly time sheet shows Kim worked three days, but Kim wrote on it, in Korean, "I worked 5 days." Another time sheet shows Kim worked two days, but he wrote on it, "I worked 4 days." He complained to Chang about the erroneous time sheets he was made to sign.

Joon Young Kim was paid $80 per day to operate equipment, though he learned from other workers that he was supposed to be paid an hourly rate of $20 for working from 7:00 in the morning until 3:30 in the afternoon. According to his affidavit, Kim once falsely told a state inspector that he was receiving the prevailing wage in order to keep his job.

Laborer Myung Suk Kang was hired by respondent Chang to work for $80 per day, for an eight-hour workday. He was paid straight time even when working on weekends. Chang instructed Kang to tell any investigators or inspectors that he was earning union wages. Once, when an inspector approached him, he said he was receiving the prevailing wage because Chang told him to do so, and Chang was listening at the time. Later, when Chang was not present, Kang apologized to the inspector for not telling the truth and informed her he was in fact making less than the prevailing rate. Before receiving his weekly paycheck, Kang was required to sign a time sheet. These time sheets showed fewer hours than he had actually worked.

Young Sam Kim, a carpenter, was paid $120 per day, for eight hours a day, five or six days per week. He saw that the time sheets he had to sign did not accurately reflect the number of hours he worked. A Lucky superintendent told him he would not get paid if he did not sign the falsified time sheet, so he signed it. In the case of carpenter Yong J. Hyun, who objected to signing the falsified time sheet, respondent Chang told him to sign it or be fired. Chang also instructed Hyun to lie about his pay rate if asked how much he earned. Later, Hyun An on-site supervisor, Grant Kyusok Choe, wrote down the hours each employee worked but deliberately did not report all of those hours on the employees' time sheets. "Adjusting" the number of reported work hours was company policy as explained to him by his supervisors, Hwang and Chang. Another of Lucky's managers, Mun Sung Cho, also noticed that there was a discrepancy between the workers' hours he reported to Lucky and the number of hours appearing on the time sheets the employees signed. Lucky superintendent Chung Soo Kim agreed that he would write down that a worker had labored for four hours when in fact the worker had put in eight hours on the job. This was company policy. Some workers complained to him about their pay. Superintendent Heyong Suk Kim testified that he instructed workers to tell anyone who asked that they were being paid the prevailing rate.

refused to sign a time sheet and was told to leave.

An audit performed by government inspectors revealed that Lucky had underreported its manpower, and owed substantial back wages to its employees, plus penalties. The inspectors determined that the certified payroll records submitted by respondent Hwang had been falsified. The information used by the government inspectors came from Lucky's books as well as employee interviews.

In the information, respondents were charged with 10 counts of receiving a portion of the wages of a worker, a felony. (§ 1778.) Enhancements were specially alleged as to all but count one, based on the amount of the illegal taking. (Pen.Code, § 12022.6.) Following a 12-day preliminary hearing, respondents were held to answer by the magistrate on all 10 violations of section 1778.

In the superior court, respondent Hwang moved for a dismissal pursuant to Penal Code section 995. Respondent successfully argued that there was no evidence that a portion of any workman's wages was taken, and the trial court granted the motion and dismissed the case. The People filed this appeal on November 25, 1991.

DISCUSSION

1. Standard Of Review

Penal Code section 995 allows a defendant to make a motion to set...