A Gilroy man will be charged with murder next week. Jimmy Francis Lee, 44, is accused of driving under the influence and killing a preschooler.

According to the Santa Clara County District Attorney’s Office, Lee will be charged with second-degree murder in the death of 4-year-old Jose Cortez-Diaz, also of Gilroy.

Last week, Lee rejected a deal that would have sent him to prison for about 30 years if he had entered a guilty plea to the initial charges — gross vehicular manslaughter and two counts of DUI.

When he faces the new murder charge on Oct. 28. Second-degree murder carries a sentence of 15 years to life in prison.

“Juries are not tolerant of this behavior,” said Deputy District Attorney Dana Overstreet, who supervises the homicide department. “And they want to hold drunk drivers accountable.”

The charges stem from an incident on July 11, when Jose’s family was driving back home from Santa Clara on southbound Highway 101 near Bailey Avenue, and Jose’s father’s Chevrolet began to make noises. Jesus Cortez pulled off to the shoulder of the road and got out, as did his wife and 12-year-old daughter. But the father couldn’t unbuckle his sleeping son from the truck before a Ford F-150 slammed into it. A toolbox dislodged from the Cortez

truck as a result of the collision and flew into Jose’s head, killing him.

Police say Lee, who was driving home from a heavy-metal concert at Shoreline Amphitheatre in Mountain View, had a blood-alcohol content of about twice the legal limit. Reports also indicate Lee had methamphetamine in his system.

Deputy District Attorney Angela Bernhard, who is prosecuting the case, said it is not uncommon to upgrade a vehicular manslaughter charge involving drugs or alcohol to murder.

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