LOS ANGELES — Former BART police Officer Johannes Mehserle will not be convicted of first-degree murder, a judge declared Wednesday. But jurors deciding the 28-year-old's fate will be allowed to consider every other crime, including second-degree murder, associated with a homicide.

Los Angeles Superior Court Judge Robert Perry said evidence in the case proves that Mehserle did not plan to kill when he shot Oscar Grant III, of Hayward, on the Fruitvale BART station platform in Oakland with a single bullet into Grant's back.

However, Perry said, there is enough evidence to allow the jury to consider if the killing was second-degree murder, voluntary manslaughter or involuntary manslaughter. The jury can also decide that Mehserle did not commit a crime at all and acquit him.

In making his decision, Perry said that even with a second-degree murder conviction, Mehserle would face a penalty of 40 years to life in prison because the Alameda County District Attorney's Office also charged the former officer with a gun enhancement.

That enhancement, purposely firing a gun during the commission of a murder, adds 25 years to the 15 years-to-life-in-prison sentence that accompanies a second-degree murder conviction. A first-degree murder conviction carries a 50 years-to-life prison sentence.

Meanwhile, the punishment for a voluntary manslaughter conviction ranges from three to 11 years and a conviction for involuntary manslaughter conviction ranges from two to four years.

Perry's ruling rejected a defense gamble to have the jury decide between only second-degree murder and acquittal. The gamble, legal experts have said, was made by the defense in hopes of preventing the jury from finding a way to punish Mehserle for the crime in a less severe manner.

But Perry said deputy district attorney David Stein presented enough evidence over the past month to justify having the jury consider lesser crimes.

In general, the jury would have to find that Mehserle took the following actions to reach the following crimes:

  • Second-degree murder: Mehserle knew the actions he was taking could cause a death but took those actions any way.

  • Voluntary manslaughter: Mehserle acted in the heat of passion or Mehserle believed his life was in danger but used too much force in defending himself.

  • Involuntary manslaughter: Mehserle committed an act that posed a high risk of death or great injury because of the way the act was committed. Or, Mehserle's actions could be found by a reasonable person to be reckless.

    Legal experts said the judge's decision to allow the jury to consider all the lesser crimes was a victory for the prosecution. Giving the jury more options to find guilt allows it to convict Mehserle of a crime even if the jury does not believe Mehserle intended to kill Grant.

    "The difference between second-degree murder and involuntary manslaughter is a subtle one," said Northern California attorney Michael Cardoza. "It gives the jury a chance to do whatever it wants."

    After the hearing, Grant's uncle Cephus Johnson said he was pleased with the judge's ruling and asked supporters to remain calm regardless of the final outcome of the trial.

    "I'm happy with the rulings today, we got everything that we wanted," Johnson said. "We thought it was second-degree from the beginning."

    Johnson said that while the family embraces the support it has received since Grant was killed, he said the family denounces any acts of violence or destruction of property in the trial's aftermath.

    "The message I have for the community is basically the same we had from the very start," Johnson said. "We as a family denounce violence in the street and destruction of property."