Is there any case law where a trial court abused its discretion in declaring a mistrial based on the unexcused absence of a juror?

Respondent's contention that the trial court abused its discretion in declaring a mistrial based on the unexcused absence of a juror, when there was no alternate, and when both parties did not agree to an 11-man jury, and when the trial had been delayed half a day awaiting the arrival of the juror, and when the trial court had sent a patrol car to the juror's home to no avail, is not meritorious. Respondent cites only cases holding that a judge should carefully consider the possible bias of a present juror before declaring a mistrial. Curry v. Superior Court (1970) 2 Cal.3d 707, 714, 87 Cal.Rptr. 361, 470 P.2d 345, itself recognizes the absence of a juror as legal necessity for a mistrial. Here the court below took reasonable steps to assure that the juror was in fact absent.

In the instant case the prosecutor was not being solicitous of defendant's rights. To the contrary, he was merely attempting to preserve the People's right to a fair trial by jury. In California, that right has been defined as a jury of 12 jurors. Since the People were entitled to a trial by jury (People v. Washington, supra; People v. King, supra), they were entitled to a trial by 12 jurors, and properly accepted nothing less.