Pacini

We are asked to decide whether the term of commitment of a patient to a state mental hospital (Pen. Code, § 1026) may be extended pursuant to Penal Code section 1026.5 by proceedings initiated by a petition filed after the expiration of the existing term. We hold that it may not and reverse the trial court’s order extending the commitment of defendant Joe Pacini.

Facts

Joe Pacini, now 74 years of age, was committed to Atascadero State Hospital on January 6, 1976, after having been found not guilty by reason of insanity of voluntary manslaughter. (Pen. Code, §§ 192, subd. 1, 1026.) On June 28, 1979, in accordance with the mandate of In re Moye (1978) 22 Cal.3d 457 [ 149 Cal.Rptr. 491 , 584 P.2d 1097 ], the Community Release Board (now Board of Prison Terms) set a maximum commitment date of March 11, 1980, for Pacini.

On October 29, 1979, the Director of Forensic Services of the Department of Mental Health wrote to the San Joaquin County District Attorney requesting that he file a petition to extend Pacini’s commitment. The letter was either lost or never received. When the district attorney failed to respond by February 21, 1980, the Medical Director of Atascadero…