What is the test for determining the degree of the crime committed by petitioner in his mental health case?

[140 Cal.App.3d 533] Had petitioner been found sane at the time of the crime, the trial court would have been required to determine the degree of the crime. (People v. Jennings, supra, 158 Cal.App.2d 159, 164, 322 P.2d 19.) Had his crime been committed on or after July 1, 1977, the court would have been required to determine the degree because it would have been required to state in the commitment order the maximum term of commitment. (Pen.Code, 1026.5, subd. (a)(1).) We conclude that if the prosecutor wishes petitioner's insanity commitment to be based upon the maximum term for first degree murder, it must seek and obtain a similar determination from the trial court. If the prosecutor declines to seek a setting of degree, or fails to obtain a first degree determination, petitioner's maximum term of commitment must be reset at the term for second degree murder.