NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MALLANO, P. J.

Defendant Michael Rangel appeals from the judgment entered upon a remand to the trial court for resentencing. Defendant contends the trial court's application of the 2007 amendment to Penal Code section 1170 resulted in ex post facto and equal protection violations. We affirm.

BACKGROUND

In 2003 defendant was convicted of seven robberies committed on January 26, 2002, and sentenced to 41 years in prison. The trial court chose the upper term of five years for count 1, the principal term. In 2004 this court affirmed defendant's convictions in his prior appeal, B168496. Defendant subsequently moved to recall the remittitur in light of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531]. This court denied the motion without prejudice.

In November of 2009, defendant filed a petition for a writ of habeas corpus in this court, B220110. On March 3, 2010, we remanded the matter to the superior court for resentencing in compliance with Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).

On August 6, 2010, the trial court conducted a resentencing hearing and again chose the upper term of five years for count 1. The court stated that the "upper term of five years . . . in the court's discretion, best serves the interest of justice. [¶] The court has read the circumstances in mitigation and aggravation as set out in California Rules of Court, sections 4.421 and 4.423. The court has selected the upper term because the manner in which the crime was carried out indicates planning, sophistication and professionalism. [¶] The court's prior imposition of sentence as to counts two, three, four, five, seven and nine remain[s] unaltered, and the remaining terms and conditions of the initial sentence in this matter of 6-25-03 remain in full force and effect."

DISCUSSION

Defendant contends that the trial court's apparent application of the 2007 amendments to Penal Code section 1170 to sentence him to the upper term for count 1 violated the ex post facto and equal protection clauses of the state and federal Constitutions. (Undesignated statutory references are to the Penal Code.) He acknowledges that the California Supreme Court foreclosed his ex post facto claim in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), but argues the decision is incorrect.

Cunningham, supra, 549 U.S. at page 288, held that California's Determinate Sentencing Law (DSL) violated the defendant's Sixth Amendment right to a jury trial to the extent it permitted a trial court to impose an upper term based on facts (other than recidivism) found by the court rather than by a jury beyond a reasonable doubt. The California Legislature responded to Cunningham by amending section 1170 to eliminate the presumption in favor of the middle term and provide, in section 1170, subdivision (b), that the choice of an appropriate term from among a triad of determinate terms rests within the sound discretion of the trial court. The amendment went into effect as urgency legislation on March 30, 2007. (Stats. 2007, ch. 3, § 3 (Sen. Bill No. 40).)

In Sandoval, supra, 41 Cal.4th at pages 845-846, the California Supreme Court noted these then-recent amendments to the DSL, and invoked its "responsibility and authority to fashion a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence." It directed that such resentencing proceedings "be conducted in a manner consistent with the amendments to the DSL adopted by the Legislature." (41 Cal.4th at p. 846.) The court explained, "Under the DSL, a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions," such as dual use of a fact. (Id. at p. 848.) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be `reasonably related to the decision being made.'" (Ibid.)

The Supreme Court rejected Sandoval's claim that applying the amended DSL to her would deny her due process and violate the prohibition on ex post facto laws. (Sandoval, supra, 41 Cal.4th at pp. 853-857.) In so doing, the court explained that "the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime. Indeed, as applied to cases such as this one, in which defendant already has been sentenced to the upper term under the version of the DSL in place at the time she committed the offense, application of the revised sentencing scheme never could result in a harsher sentence and affords the defendant the opportunity to attempt to convince the trial court to exercise its discretion to impose a lower sentence. To the extent the removal of the requirement that the middle term be imposed in the absence of aggravating or mitigating circumstances may be viewed as granting the trial court greater discretion to impose the upper term, the revision would afford the court an equally increased discretion to impose the lower term. Moreover, as noted above, the difference in the amount of discretion exercised by the trial court in selecting the upper term under the former DSL, as compared to the scheme we adopt for resentencing proceedings, is not substantial." (Id. at p. 855.)

Defendant's ex post facto claim has no merit in light of Sandoval.

Defendant argues that "application of SB40 also violates the guarantee of equal protection because persons who are resentenced on appeal after Sandoval have their resentencing controlled by SB 40, while persons who were resentenced prior to Sandoval are subject to the more favorable treatment of pre-SB 40 DSL and court rules. Because there is no rational basis for the disparate treatment of the two groups of similarly situated persons, it violates the guarantees of equal protection."

To establish that a statute violates equal protection, defendant must show that the state has adopted a classification that treats unequally two or more groups of people who are similarly situated with respect to the legitimate purpose of the statute. (People v. Romo (1975) 14 Cal.3d 189, 196.) The classification defendant proposes is strictly temporal, that is, dividing those resentenced before Sandoval from those resentenced after Sandoval. A substantial body of law holds that temporal classifications resulting from a change in the law do not violate equal protection. (People v. Floyd (2003) 31 Cal.4th 179, 188-191 [prospective application of Proposition 36 did not violate equal protection]; In re Stinnette (1979) 94 Cal.App.3d 800, 806 [refusal to apply new prison conduct credits retroactively to time served prior to effective date of new statute did not violate equal protection].) "`[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.'" (Baker v. Superior Court (1984) 35 Cal.3d 663, 669 [extension of MDSO commitments following repeal of MDSO law did not violate equal protection], quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [31 S.Ct. 490].) It is theoretically possible that in the nearly seven-month period between the decisions in Cunningham and Sandoval, some defendants were resentenced to the presumptive midterm under the former DSL for lack of an aggravating factor that would comply with Cunningham and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348]. Had defendant filed his habeas petition immediately after Cunningham, he might have been one of them. (Although we note that he appears from the probation report to have had at least six prior convictions and two sustained juvenile petitions upon which the trial court might have relied to select the upper term under Apprendi.) But defendant did not do so, and the ensuing change in procedure did not violate equal protection.

We further note that defendant has not established either element of an equal protection claim. The purpose of Sandoval's adoption of the amended DSL procedures was to provide "a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence." (Sandoval, supra, 41 Cal.4th at p. 846.) Persons resentenced after Sandoval are not similarly situated to those resentenced between the dates of Cunningham and Sandoval because the applicable procedure had not yet been determined. And, as Sandoval remarked, any difference in treatment resulting from the elimination of the prior presumption that the middle term should be applied is not substantial and to the extent the new procedure provides the trial court with increased discretion, it applies equally to imposition of the lower and upper terms. (Sandoval, supra, 41 Cal.4th at p. 855.)

DISPOSITION

The judgment is affirmed.

CHANEY, J. and JOHNSON, J., concurs.