BOUDAMES

Joseph Boudames appeals his conviction by jury verdict of two counts of failing to pay sales taxes (Rev. & Tax. Code, § 7153.5) and one count of bribery (Pen. Code, § 67.5, subd. (b)). He contends the bribery conviction must be reversed because it was the result of entrapment, there is insufficient evidence to support the failure-to-pay convictions, and the restitution order incorrectly includes statutory penalties. In the published portion of our opinion, we address whether a penalty assessment imposed under Penal Code section 1202.4, subdivision (a)(2) or a penalty imposed under Revenue and Taxation Code 6591 may be included in victim restitution ordered pursuant to Penal Code section 1202.4, subdivision (f).

BACKGROUND

I. Overview

Appellant was the president of a retail computer store in San Francisco. When an auditor from the California Board of Equalization (Board), conducting a sales and use tax audit of the business, informed appellant he had a possible sales tax arrearage of $160,000, appellant implicitly offered the auditor a bribe if he would submit an audit report showing a substantially lower arrearage. Under a clandestine investigation supervised by the…